piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Damages for abuse

The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser’s actions. The court was therefore concerned solely with the assessment of damages. The case had one feature that is depressingly common and one that is rather unusual. It is also, in more general terms, a helpful illustration of how courts may approach the difficult issues that cases of this kind throw up. It is often the case that victims of abuse are peculiarly vulnerable individuals. Sometimes this gives the abuser the opportunity to perpetrate abuse (for example, if a child is in care) or prevents the abuse being detected (because there is no-one the child can trust enough to confide in). The correlation (or at least frequent concurrence) of pre-existing vulnerability and abuse makes determining issues of causation in such cases difficult, because children who have experienced traumatic childhoods may already be destined to lead difficult adult lives in any event. In this case, the Claimant’s parents separated when he was four or five years old after his father had been violent towards his mother. He began using drugs in his teens and subsequently obtained his income principally from drug-dealing, with the exception of a few short-lived periods when he was in employment. He had a number of convictions for offences relating to drugs, firearms, dishonesty and violence.   The Claimant contended that he was entitled to a Blamire award for loss of earnings, past and future, on the basis that his inability to find sustained employment was a result of the abuse he had suffered. The Defendant accepted that the Claimant was entitled to general damages, but disputed the loss of earnings claim, contending that it was his “lifestyle choices” rather than the abuse that had prevented him being in sustained employment. The Defendant further contended that, even if factual causation was established, much of the Claimant’s loss should be deemed irrecoverable as a matter of public policy because it arose from the consequences of the Claimant’s own criminal conduct. After a careful analysis of the facts, the court preferred the Defendant’s case on causation. As a result, it did not have to go on to consider the application of the ex turpi maxim. It assessed general damages at £48,000 and dismissed the claim for aggravated damages with reference to Richard v Howie [2004] EWCA Civ 1127. The unusual feature of the case was that at the time he was subject to the abuse, and for some time afterwards, the Claimant and another boy effectively blackmailed the abuser when they realised they could demand from him rewards of money and material possessions in return for keeping quiet about the abuse. The Defendant contended that it should be given credit for the sums thereby extorted from the abuser by the Claimant. It was prayed in aid in support of this submission that the Claimant had himself described the payments in his witness statement to the police as “compensation”. Such a submission is so obviously unattractive that it is perhaps surprising that it was ever advanced and it is not at all surprising that it was rejected by the judge, who held (a) that the payments were gifts and hence could not properly be considered as compensation and (b) that as a matter of public policy the Claimant’s damages should not be reduced as the Defendant suggested. The judge reached the right conclusion, but for the wrong reasons. The payments were not gifts; they were, on the facts, part of a bargain between the Claimant and the abuser whereby the abuser sought to buy the Claimant’s silence so that he could continue to perpetrate abuse (of the Claimant and of others). The real reason the Defendant was not entitled to credit for the payments was that they did not relate to the subject matter of the claim, which was damages for the effect of the abuse on the Claimant in terms of pain, suffering, anguish etc. The abuser made the payments so that he could continue his abuse, not to compensate the Claimant for the effects of that abuse. Because the Defendant’s contention could have been dismissed for that reason, the resort to public policy was unnecessary and possibly unhelpful for future cases where the same or similar issues arise. There may be cases where it would be appropriate for a defendant to be given credit for payments made by an abuser. Suppose an abuser later repented of their abuse and wrote to their former victim expressing contrition for the harm they had caused and enclosing a cheque which the victim banked. Such cases are likely to be exceptional, but as and when they do occur then on what principle of public policy should a defendant who was vicariously liable for the abuser’s actions not be entitled to have that payment taken into account? There will be cases at the margins which will be difficult to decide, but the principle that should be applied remains whether the payments were genuinely compensatory or whether, as here, they were really the price that the abuser was willing to pay to avoid detection. A victim extorting money from an abuser may be unusual but it is not unprecedented. A case that sticks in the mind from criminal law lectures is R v Camplin (“the chapati pan case”) where the defendant murdered his abuser, who he had been blackmailing in return for not revealing the abuse of another boy called “Jumbo”: see the report from the Court of Appeal [1978] QB 254 at 257C. Many of the abuse cases currently working their way through the courts involve wealthy abusers who may have made payments to their victims. How to treat those payments is therefore an issue which the courts are likely to have to address again before too long.

Top personal injury decisions of the Court of Appeal in 2015

The Court of Appeal has made a number of important decisions in 2015 in the field of personal injury. As the year draws to a close, Ella Davis and I review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties... Psychiatric Damage Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was a case of a claimant claiming damages for psychiatric injury consequent on seeing the condition of a loved one brought about by the negligence of a defendant. Of the four requirements for recovery, the decision focused on whether C’s illness had been “induced by a sudden shocking event.” Three issues were at the heart of the case: (1) whether C had suffered a recognised psychiatric illness, (2) Whether there had been “an event” and (3) how “shocking” the event must be. Edward Bishop QC provided a masterly analysis of this and other decisions in the 1 Chancery Lane October 2015 PI Briefing. In brief, C’s wife became extremely unwell due to the negligence of D. C claimed he had suffered psychiatric injury as a result of the shock of seeing his wife’s sudden deterioration and appearance in hospital. The CA confirmed that courts should pay close attention to diagnostic criteria, that whether an event is ‘horrifying’ must be judged by objective standards and by reference to persons of ordinary susceptibility and that for an event in a hospital to be ‘shocking’ required something “wholly exceptional in some way so as to shock or horrify”. It also considered what was meant by an ‘event’ and ‘sudden’ finding that C had not been exposed to one event (“a seamless tale with an obvious beginning and an equally obvious end”) but a series of events with no “inexorable progression”. What had happened was not sudden, it had not caused an “assault upon the senses” but at each stage C had been conditioned for what he was about to perceive. Causation Reaney v University Hospital of North Staffordshire NHS Trust  [2015] EWCA Civ 119 was considered on this blog in a posting by Ella Davis “Quantity not Quality”. She rightly observes that the decision brings clarity to the law rather than any new departure. The CA considered causation in a case where a patient was a paraplegic requiring a care regime (due to non-negligent causes) but due to the negligence of D causing pressure sores, her care needs were increased. The question was whether D caused all her care needs or whether D was only liable for those needs less the needs which she would have had but for the negligence. The key issue was whether the pre-existing care needs were qualitatively different from those caused by the negligence or whether they were merely quantitatively different. The CA found they were only quantitatively different and therefore D was only liable for C’s increased care requirements. In future parties will doubtless pay careful attention to whether losses are qualitatively or quantitatively different as a result of negligence adding to a pre-existing condition. Causation and the Burden of Proof Graves v Brouwer [2015] EWCA Civ 595 concerned a house fire of unknown cause. Mr Brouwer set fire to a small bundle of papers in the passageway next to his house. Very shortly afterward the roof of his neighbour’s house caught fire. The experts agreed that the chances of an ember from the papers travelling to the eaves of the building and starting a fire were very low but, absent arson, were unable to come up with a more probable cause. The judge rejected arson as fanciful and found that, while the flying ember theory was scientifically improbable, the Claimant succeeded on causation. The Court of Appeal overturned her decision saying she had failed to ask herself the ultimate question whether the flying ember theory was more likely or not to be true. The fact that no other possible causes were identified, in large part because there was no investigation at the time, did not make it more probable than not the fire was caused by a flying ember. As Roderick Abbot observed in his blog post “Sherlock Holmes in the Court of Appeal”, the exercise is not one of identifying the least unlikely cause. The Claimant had failed to discharge the burden of proof and that was all the judge was required to find. Quantum Billett v Ministry of Defence [2015] EWCA Civ 773 concerns how courts should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables, suitably adjusted? C suffered from a minor Non Freezing Cold Injury (“NFCI”) which had a substantial impact on his day to day life in cold weather. The condition had less impact on his work as a lorry driver than it had on his leisure activities. The judge found that his loss of future earning capacity should be assessed by using Ogden Tables A and B, suitably adjusted, not by applying Smith v Manchester.  The CA upheld his decision that C had a minor disability clarifying that where a court considers whether an injury substantially limits a claimant’s ability to carry out normal day-to-day activities, the enquiry should be directed at what the claimant cannot do rather than what he can do. The CA overturned the judge’s decision to use the Ogden Tables: unadjusted they produced an unrealistic future loss; adjustment however was a matter of broad judgment which was no more scientific than the approach in Smith v Manchester. The judgment still leaves open the question when a disability becomes serious enough to engage the approach in Ogden Tables A and B and when and how those might be adjusted.  However as Andrew Spencer said in his blog on this case (Loss of future earnings and disability) the case is strong authority for retaining the Smith v Manchester approach in cases of minor disabilities with little effect on the claimant’s chosen career. Athens Convention In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the CA considered two issues relating to the Athens Convention (which governs personal injury to passengers at sea). The first was whether it extended to claims against carriers for contribution to liability of others and the second was the effect of the time bar prescribed by the convention. Dr Feest was injured in a boating accident in the Bristol Channel. The carrier was Bay Island Voyages (“BIV”). Dr Feest’s first firm of solicitors failed to issue against BIV within the 2 year time limit under the Convention and so she sued her employer SWSHA on the basis the accident occurred in the course of her employment. SWSHA joined BIV who successfully applied to have the Part 20 proceedings struck out. The Court of Appeal found that the provisions of the convention were not directly applicable to SWSHA’s claim against BIV. It also found that the time bar in Article 16 did not extinguish the cause of action but only barred the remedy: this was critical for SWSHA’s contribution claim as, if the limitation provisions had extinguished the right to bring the claim, under the provisions of the Civil Liability (Contribution) Act 1978 SWSHA could only have brought a claim within 2 years of the accident. Ian Miller, who represented SWSHA with John Ross QC, blogged on the case: “Contribution, limitation and the Athens Convention.” Jurisdiction Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665 involved the application of the Canada Trust gloss and a novel question about where damage in a tort claim was sustained. C bought an off package excursion in Egypt in which her husband was killed and she was injured. She booked the excursion by making a telephone call in England to the concierge at the hotel in Egypt. After the accident she brought proceedings in the High Court in contract and tort. She brought three tort claims (1) in respect of her own injuries; (2) as a dependant of her husband and (3) for the loss suffered by her husband’s estate. On appeal the court of appeal, applying the Canada Trust gloss – which is well set out and explained in the judgment - found that there was a good arguable case as to the identity of the defendant and as to whether the contract was made in England. This was not novel point of law: it was merely a finding that it was likely that C had called the concierge with proposals and he had accepted them. Given a contract for an excursion is made at the place where the words of acceptance are received, the contract was made in England. The novel point of law considered by the CA was the question of whether damage was sustained within the jurisdiction for the purposes of C’s claim in tort. This is the requirement of paragraph 3.1(9)(a) of the Practice Direction 6B (the tort gateway) for permission to serve out of the jurisdiction. The CA held the jurisdictional gateway should be interpreted consistently with Rome II and therefore the country in which the damage occurs should be the country where the injury was sustained regardless of the country in which the indirect consequences could occur. Thus the Claimant’s personal claim and the claim on behalf of the estate should be brought in Egypt. However, the dependency claim under the Fatal Accidents Act 1976 was not properly described as a consequential loss it was an independent loss and so the Claimant had shown a good arguable case that English law should apply to this claim. Matthew Chapman who appeared in this case with John Ross QC has blogged on it here. Duties of care and mental impairment In Dunnage v Randall [2015] EWCA Civ 673  the Defendant (“V”) was a paranoid schizophrenic who poured petrol over himself and ignited it, injuring his nephew the Claimant. V’s mental state was agreed to be grossly impaired. On a spectrum between completely healthy volition and absent volition he was at least 95 per cent impaired and probably 100 per cent absent volition. A number of helpful points arise from the three lengthy judgments given. First, the court rejected any need to differentiate between mental and physical impairment. Second, a person with a mental impairment owes a duty of care. Third, the standard of care should not be adjusted to take account of the personal characteristics of the Defendant, it is purely objective. Fourth, only Defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be said not to have broken their duty of care. The Claimant’s appeal was therefore allowed. Interestingly the court noted that insanity is a defence in crime because criminal law is punitive whereas the function of the law of tort is to compensate victims. Vicarious Liability In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47  the court had to determine whether an employer was vicariously liable for the acts of an employee who sprayed a co-worker’s overalls with thinning agent and then set them alight causing him considerable injury. Having looked at the Canadian authorities in sex abuse cases, the court considered that the starting point was to examine whether there was a close connection between the creation or enhancement of a risk by the employer and the wrong that accrues therefrom. In this case the employers created a risk in requiring their employees to work with paint thinners but there was not a sufficiently close connection between that risk and the wrongful act. The wrongful act did not further the employer’s aims and it was not related to friction, confrontation or intimacy inherent in the employer's enterprise. Where the employment does not require the exercise of force and there is no inherent friction, intentional conduct in the workplace, whether horseplay or more serious acts, will not normally give rise to vicarious liability. Vicarious Liability and Non-Delegable Duties The Court of Appeal in NA v Nottingham County Council [2015] EWCA Civ 1139 held that a local authority was not vicariously liable for the abuse of a child by the foster carers with which it placed her, nor did it owe her a non-delegable duty to protect her from harm. The relationship between the local authority and the foster carers was not sufficiently akin to one of employment to give rise to vicarious liability. On the issue of a non-delegable duty all three members of the court of appeal gave different reasons summarised in our November 2015 PI Briefing. In brief, Tomlinson LJ held that the local authority had discharged rather than delegated its duty in placing the child with foster carers. Burnett LJ held that what the Claimant sought to do was to expand the common law imposing a strict duty on local authorities on the basis that foster parents were not always able to satisfy a claim. Black LJ held that it would not be fair just and reasonable to apply such a duty; in fact it would be unreasonably burdensome and potentially harmful if it led to over cautious practice.  

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.

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)

Holding out for the Heroism Bill

The Social Action, Responsibility and Heroism Bill (dubbed by some the “Sarah Bill”) is being returned to the House of Commons, with amendments, following its final reading in the House of Lords on 6 January 2015. The much-maligned and exceptionally brief Bill seeks to introduce a requirement that courts deciding negligence and/or breach of statutory duty cases and in determining the standard of care give consideration to whether the activity or omission complained of was for the benefit of society, whether the person carrying out the activity demonstrated a “predominantly responsible approach” in protecting a person’s safety or other interests and whether (in emergency situations) the person intervened “heroically”.   Clause 4 in particular makes clear that the Bill is aimed predominantly at personal injury cases, although it will apply to non-personal injury cases. Critics of the Bill have suggested that it is largely being promoted by the Government to further protect employers and to appease the insurance industry. Indeed, the Bill has been criticised on several grounds, mostly as being a mere publicity stunt by the Government but also for its vagueness. The Sarah Bill is designed to afford greater protection to volunteers and employers who might otherwise be deterred from performing worthwhile deeds or organising events due to the risk of finding themselves on the end of a negligence claim. The Bill survived an attempt in December 2014 at the Second Reading to remove most of its (four) clauses. At the Third Reading, clause 3 (the social responsibility clause) was amended such that (in assessing the standard of care) the individual’s approach towards protecting the safety and interest of others must have been “predominantly”, rather “generally”, responsible. Clause 4 was also amended, removing the words “and without regard to the person’s own safety or other interests” to make clear that the clause applies equally to those cases where the person (sorry, hero(ine)) assess  the risks to their own safety or other interests before intervening (as well as those where they did not assess the risks). The amended Bill will be considered by the House of Commons on 2 February 2015. If the Bill is passed, there are potentially difficult questions for the judges on the ground to answer. The Bill is somewhat unhelpfully brief and uses terms which are somewhat “foreign”. The first difficulty is going to be determining when a defendant’s action was “for the benefit of society or any of its members.” The clause has a potentially enormous scope. Employers, particularly in the public sector, are likely going to try to fit themselves under this clause. But even if they do, you may well ask, so what? It is only a factor for the judge to consider and is by no means a defence. There is no indication of what weight, if any, judges will place on this factor. Judges will also have to decide on what is meant under clause 3 by a “predominantly responsible approach” in protecting the safety or other interests of others. Again, the potential scope of the clause is vast. Will it apply, for instance, to all medical professionals? Will it apply to any attempt by an employer to introduce some health and safety measure? And what is the tipping point for an approach to be categorised as “predominantly responsible”? There is potential for a stream of cases on that issue alone, unless of course there is a judicial reluctance to engage with the clause and it goes the way of section 1 of the Compensation Act 2006. It is also questionable how many cases will fall under clause 4 (the heroism clause). But for those that do, what do we mean by acting “heroically”? This is an entirely foreign legal concept and is open to a sliding scale of judicial interpretation.  Are doctors acting “heroically” in emergency situations or will the clause only apply to the volunteer, have-a-go hero(ine) which the Government seems to have intended? The Bill, as is stands, is brief, vague and uses terms to which the legal world is not accustomed. Although cases might throw up interesting questions on how to interpret the Bill, one has to wonder whether it will all be for nought. Chris Grayling MP himself has said, "The bill will not change this overarching legal framework, but it will direct the courts to consider particular factors when considering whether the defendant took reasonable care." If judges do not engage with it or consideration of these particulars factors makes no material difference in practice, will defendants even bother to try to fit their cases under one of the clauses? Much like section 1 of the Compensation Act 2006, it will be judicial appetite that determines how effective the Bill’s clauses become. Given the criticism of the Bill in judicial circles, do not expect that appetite to be very strong.  

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

“Safe sex” – Part 3

Sex activity is “in every sense a personal choice”.   Ordinarily this truism might not find its way into legal submissions and certainly not submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily injuries at work do not arise from a “vigorous” sex session in a motel bedroom.   Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions for personal injury and employment lawyers in the UK about the types of activities which can properly be said to arise out of or in the course of employment.    The respondent, a female public servant sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. The respondent’s partner’s evidence was that they were “going hard” when a glass light fitting came away from the wall above the bed striking her in the face and causing both physical and psychological injuries.   The appellant 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 a motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, 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.   Nicholas J. allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. Comcare appealed to the full court of the Federal Court of Australia (FCA) which dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In particular, the FCA rejected Comcare’s submission that an injured employee must show both that the injury occurred at a place where he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer or was implicitly accepted. It held that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways.   Comcare appealed to the High Court of Australia which on 30 October 2013 by a majority of 4-2 allowed the appeal and rejected the respondent’s claim for compensation – see Comcare v PVYW [2013] HCA 41.   The judgment of the majority was given by Chief Justice French AC. The essential enquiry in each case was “how was the injury brought about?” Sometimes the injury will have occurred at and by reference to the place where the employee was. Usually, however, it will have occurred while the employee was engaged in an activity.   The majority held at [38] that “when an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment”.    It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at the place where the injury ocurred because such inducement or encouragement is not relevant to the circumstances of the injury.   Put another way, an employer is not liable for an injury which occurs when an employee undertakes a particular activity if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken.   Two justices dissented. Bell J. held at [106] that “consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency”. Gageler J. agreed holding at [159] that “The particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis”.     The High Court’s decision means that in Australia an employer will not become, in reality, an insurer for an employee in respect of any activity carried out at a place which the employee has been induced or encouraged by the employer to be. It also provides useful guidance to UK lawyers who may be called upon to deal with unusual work place related injuries.   The decision also restores certainty and structure to the law of employers' liability in Australia – something which was sadly lacking in the motel light fitting in question!  

Suitability and work equipment: a new test and an even greater burden on employers?

On 23rd April 2013 the Enterprise and Regulatory Reform Act received royal assent. One of the most controversial changes that it will introduce is an amendment to the Health and Safey at Work Act 1974, the effect of which will be to abolish civil liability for breach of the various ‘six pack’ regulations which govern employer’s liability. The regulations can still be relied upon as evidence of a failure to exercise reasonable care, but the burden will rest with the injured employee to prove that the accident has been caused by the negligence of the employer.     The difference between liability for negligence at common law, and the stricter requirements of regulations emanating from Europe, was brought into sharp focus by the recent court of appeal decision in Hide v The Steeplechase Company (2013) EWCA Civ 545. The claimant was a self-employed jockey. He jumped the first hurdle at Cheltenham racecourse when his horse stumbled and fell. It careered sharply to the right, which caused Mr Hind to fall, hit the ground and roll sideways into one of the upright posts of the guardrails surrounding the track. The Defendant was able to produce quantities of evidence that the track had been audited and inspected by relevant regulatory bodies and found to be of the highest standard in terms of safety. Indeed, the Court of Appeal commented that the course had received consistently ‘glowing recommendations’ and that no concerns had ever been raised about the safety of the fencing or its proximity to the hurdle. However, the Claimant relied upon regulation 4 of the Provision and use of Work Equipment Regulations 1998. The argument, in simple terms, was that, applying Robb v Salamis (2007) ICR 175, work equipment which might foreseeably cause injury was not suitable. Accordingly, since the fence and hurdle were work equipment (a point which was not appealed) and since it was foreseeable that a rider might fall off a horse whilst negotiating a hurdle and strike the fence, suffering injury, the equipment was therefore unsuitable.  The trial judge found that the Claimant bore the burden of proving that injury was foreseeable. He held that no accident had ever taken place before, that this accident occurred in a truly bizarre fashion, the risk of injury and falling was inherent in horse-racing and  it was not reasonably foreseeable that the Claimant would suffer injury in the way that he did.   On appeal, the Court of Appeal reiterated that it was irrelevant that the precise mechanism of the accident was not foreseeable: only foreseeability of some injury was necessary. This was a point that the House of Lords had already emphasised in Robb v Salamis and, to this extent, the judgement takes the law no further. However, the Court went on to find, after a careful analysis of the Work Equipment Directive, which implements the 1998 Regulations, that: 1)      Once the Claimant shows that he has suffered injury as a result of contact with a piece of equipment which may be unsuitable, the burden shifts entirely to the Defendant. 2)      The Defendant can only escape liability by proving either that the accident was due to unforeseeable circumstances beyond its control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part. Somewhat bizarrely, therefore, the Court of Appeal has brought the fault of the employer back into the equation under Regulation 4 (whereas previously only foreseeability was relevant). However, at the same time, it has set the hurdle (no pun intended) so high as to make it extremely difficult, if not impossible, for the employer to discharge the burden in the vast majority of personal injury claims.  On the facts of the case, the racecourse had not shown the accident fell within either of the narrow exceptions above and liability was therefore established. The decision in Hide will no doubt be cited, by proponents of the new legislation, as a fine example of the reason that change is required. The judge at first instance, whose decision was overturned, regarded the Claimant’s arguments as demonstrating “the relentless logic of the personal injury lawyer”. The Court of Appeal plainly had some sympathy with this position but concluded that the Regulations simply “give rise to a form of liability which is a stricter liability than at common law”  It will be interesting to see what extent the same case would be decided differently after the new legislation comes into force.

“Safe sex” – Part 2

Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions about activities which can properly be said to arise out of or occur in the course of employment.    The appellant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a motel 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 appellant’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 appellant 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 motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, 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 of Australia (FCA), the appellant’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, Nicholas J., allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. The judge held that “While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant’s employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant’s lawful sexual activity” – see [54] of the judgment.   Comcare appealed to the full court of the FCA which on 13 December 2012 dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In a carefully reasoned judgment the full court, presided over by Keane CJ., rejected Comcare’s essential submission that “an injured employee who claims to have been injured during an interval or interlude between periods of actual work must show both that the injury occurred at a place he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer, or was implicitly accepted”.   The court held that that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways. Further, the concept of, here, “a frolic of her own” was one which applies to wrongful acts. The court also made clear that “the views of the respondent’s employer about the respondent’s (lawful) activities were irrelevant, whether or not those views (if sought) may have reflected disapproval or indifference” – see [50] – [55] of the judgment.   This must be right. Why should being injured whilst having sex be any different to the claimant being injured whilst working out on one of the exercise bicycles or cross trainers in the motel’s gym provided that the injury occurred within an overall period or episode of work and negligence can be shown. Further, why should the employer approve when and how an employee has sex any more than where she chooses to have her breakfast?   Comcare is considering an appeal to the High Court, Australia's highest legal tribunal. In the meantime, common sense has prevailed, the judgment provides useful guidance on the scope of workplace injuries and I, for one, will in future double check the structural integrity of motel light fittings.