1. PERSONAL INJURY UPDATE
DECEMBER 201518 ST JOHN STREET CHAMBERS NEWSLETTER
INSIDE
Ian Huffer provides his regular Personal Injury Law update. This month he covers Child Abuse
Claims, Pedestrian Contributory Negligence, Costs (Assignment of CFAs, Part 36.10(5) and
Exaggeration), Fixed Costs (Transfer to Multi-Track) and ‘Proportionality over Necessity’
CHILD ABUSE CLAIMS. VICARIOUS
LIABILITY AND NON-DELEGABLE
DUTY OF CARE
In the awaited case of NA v
Nottingham County Council
[2015] EWCA Civ 1139 the Court
of Appeal wrestled with two
questions, whether the
relationship between a local
authority and foster parent was
such that it should be vicariously
liable for their wrongful acts and
whether a local authority owed
the child in foster care a non-
delegable duty.
The Claimant, who had been
placed by the Defendant in the
care of foster parents, Mr and Mrs
A and Mr and Mrs B, alleged
abuse against the foster parents.
The trial judge exercised his
discretion under section 33 of the
limitation Act to allow the claim
to proceed out of time and
found that the Claimant had
been physically abused by Mrs A
and sexually abused by Mr B.
However, having found no
negligence on the part of the
Defendant’s social workers
involved with the Claimant, he
held that the local authority was
not vicariously liable for the
deliberate acts of foster parents
and the local authority did not
owe a child in foster care a non-
delegable duty.
The Court of Appeal dismissed
the Claimant’s appeal. In relation
to vicarious liability, the Court
unanimously agreed that the
relationship between a local
authority and a foster parent is
not “akin to employment”
applying the test in Various
Claimants v Catholic Welfare
Society [2013] 2AC. “The
provision of family life is not and
by definition cannot be part of
the activity of the local authority
or of the enterprise upon which it
is engaged. Family life is not
capable of being so regarded,
precisely because inherent in it is
a complete absence of external
control over the imposition or
arrangement of day to day
family routine, save insofar as is
provided by the general law or
by ordinary social conventions.
The control retained by the local
authority is at a higher or macro
level. Micro management of the
day to day family life of foster
children, or of their foster parents
in the manner in which they
create the day to day family
environment, would be inimical
to that which fostering sets out to
achieve.” (Tomlinson L.J.)
The question of whether there
was a non-delegable duty of
care required the Court to
revisit the Supreme Court’s
comparatively recent case of
Woodland v Swimming Teachers
Association & Others [2014] AC
537 and Lord Sumption’s criteria.
Each Lord Justice of Appeal
gave a different reason for
dismissing the appeal.
Lord Justice Tomlinson found that
4th of Lord Sumption’s criteria
was not met. “In order to be non-
delegable a duty must relate to
a function which the purported
delegator, here the local
authority, has assumed for itself a
duty to perform. Fostering is a
function which the local authority
must, if it thinks it the appropriate
choice, entrust to others. By
arranging the foster placement
the local authority discharged
rather than delegated its duty to
provide accommodation and
maintenance for the child.
True it is that the local
authority entrusted to the
foster parents the day to day
delivery of accommodation, but
accommodation within a family
unit was not something which the
local authority could itself
provide and this cannot properly
be regarded as a purported
delegation of duty. It was
inherent in the permitted choice
of foster care that it must be
provided by third parties”.
The basis of Lord Justice Burnett’s
judgment was that the
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2. 18 ST JOHN STREET CHAMBERS NEWSLETTERDECEMBER 2015
relevant duty was the duty of the
local authority to care for the
child – to promote its welfare
and to protect it from harm. “If,
as is uncontroversial, parents
would not be saddled with a non
-delegable duty …. not to assault
the Appellant, that conclusion
provides strong support for the
proposition that a local authority
should not be either”
Lady Justice Black agreed with
the trial judge it was not “fair, just
and reasonable” to impose a
non-delegable duty on the local
authority. As to do so would
be “unreasonably burdensome,
and, in fact, contrary to the
interests of the many children for
whom they have to care”.
ROAD TRAFFIC ACCIDENT -
CONTRIBUTORY NEGLIGENCE BY
PEDESTRIAN
Sabir v Osei-Kwabena [2015]
EWCA Civ 1213 is a further
example, following the Supreme
Court’s decision earlier this
year in Jackson v Murray ([2015]
UKSC 5) of a party seeking to
appeal a trial judge’s decision
on contributory negligence.
The Court considered the two
aspects to apportioning liability,
namely the respective causative
potency of what they have
done, and their respective
blameworthiness and that
because a car can usually do
much more damage to a person
than a person can do to a car,
the court imposes a high burden
upon drivers. In Eagle v
Chambers, L.J. Hale had said
that it was "rare indeed for a
pedestrian to be found more
responsible than a driver unless
the pedestrian has suddenly
moved into the path of an
oncoming vehicle". Lord Justice
Tomlinson felt that the proper
approach was to treat the
destructive capacity of a driven
car as coming within both
aspects of the evaluation.
Whilst the court derived
limited assistance from detailed
comparisons of outcomes in
other cases case law
could points up
general principles and in the
instant appeal the Defendant
sought to argue the general
principle that a pedestrian
attracts a greater share of the
responsibility when he suddenly
steps directly into the path of an
oncoming car.
Lord Justice Tomlinson did not
agree that in the instant appeal
the Claimant took a deliberate
risk. “In one sense of course
crossing the road in a town
or suburban environment always
involves an element of
deliberate risk taking, unless
there is no vehicle in sight and
the view is unobstructed for a
suitable distance. Even then
there is always the risk of slipping
or stumbling, or of a vehicle
emerging from a side road, and
matters of that sort. Deliberate
risk taking, in this context, is in my
view conduct …which the judge
there characterised as setting
off when, unless the driver
took some avoiding action,
an accident was likely. Moreover
it often involves running –
a recognition that the orthodox
method of crossing the road
cannot safely be achieved
without waiting, and conduct
carrying with it its own inherent
risk of misjudgement of running
speed and the obviously
heightened risk of missing one's
footing. The judge here found
that the Claimant made a slight
misjudgement, not that she
had deliberately set out
upon an errand which
was obviously unsafe unless
she could cross at more
than her normal walking pace.
.....The Claimant's misjudgement
plainly contributed to the
damage, as did her failure to
pay close attention to the car's
approach, which could have
led her to alter course or to
speed up, and each is to a
degree blameworthy. But it is
blameworthy in that it betokens
a want of regard for her own
interests …..The Claimant did not
in any real sense place the
Defendant in danger. The
Defendant ought reasonably to
have seen her in such time as
was ample to enable him to take
his foot off the accelerator,
which would in itself without
braking have avoided the
collision. It is not a case of a
sudden emergence into the
road by a pedestrian at the last
moment creating a situation of
urgency”.
“The causal potency of the
Defendant's conduct is much
greater than that of the
Claimant, not least because he
was driving a car whereas she
was a pedestrian but also
because she in no sense created
a situation of urgency. The
relative blameworthiness is stark.
The Claimant slightly misjudged
her own safety. She did not put
the Defendant at risk. The
Defendant by contrast failed to
keep a proper lookout in
circumstances where he could
expect pedestrians to attempt to
cross the road to reach shops on
the other side or simply to be in
the road in connection with
parked vehicles and where he
was driving at the maximum
speed permitted. He did not just
fail to see the Claimant and to
react within such timescale as
was reasonably to be expected,
he failed to see her at all over a
period significantly, in the
context, longer than that
benchmark”.
The Defendant's conduct and its
blameworthiness were very
substantially greater than that
of the Claimant and The
Defendant’s appeal against the
75:25 apportionment in the
Claimant’s favour was dismissed.
COSTS
ASSIGNMENT OF CFAS
In Jones v Spire Healthcare
(11.9.15) District Judge Jenkinson
(Liverpool County Court) held
that S solicitors which bought the
personal injury book of B solicitors
was unable to recover its costs in
a PI action on the basis that
Ms Jones’ agreement with B
solicitors was not successfully
assigned. The case did no fall
within the ‘narrow exception’
established in Jenkins v Young
Bros Transport (2006) where the
Claimant had been loyally
following a solicitor to a new firm.
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3. 18 ST JOHN STREET CHAMBERS NEWSLETTER DECEMBER 2015
The costs incurred by B solicitors (but
not those incurred later by S
solicitors) could be recovered
because the benefit of the retainer
(but not the CFA) had been validly
assigned. It is believed that the
decision is to be appealed.
PART 36.10(5) AND EXAGGERATION
In Karl Worthington v 03918424
Ltd DR (Manchester) the Claimant
brought a £500,000 personal injury
claim. Following surveillance of the
Claimant, the Defendants made a
Part 36 offer in the light of which the
experts indicated that they could no
longer support the Claimant who
accepted the offer out of time.
The judge felt entitled to draw the
inference that by accepting the
part 36 offer, the Claimant
accepted that his case had been
exaggerated. If the litigation
had been conducted without
exaggeration, it would probably
have settled by June 2012. The court
therefore ordered that the costs to
which the Claimant would otherwise
have been untitled did not apply
but ordered “otherwise” (CPR 36.10
(5)). The Claimant was awarded
his costs on a standard basis up
to and including June 2012 but
he was ordered to bear the
surveillance evidence costs and
the Defendant's costs from June
2012 on an indemnity basis.
FIXED COSTS -
TRANSFER TO MULTI-TRACK
In Qader & Ors v Esure [2015] EWHC
B18(TCC) a claim started under the
RTA Protocol was moved to the multi
-track because the Defendants
alleged that the accident had been
caused deliberately. The District
Judge ordered that fixed costs
under CPR 45.29A (IIIA) applied.
Judge Grant dismissed the
Claimant’s appeal. The claim
notification form was sent after 31
July 2013 after section IIIA came
into effect clearly stating the
conditions which, as a matter of law,
applied. There was no affront to
the overriding objective of the CPR
and the provisions of CPR
r.45.29J provided a safeguard
against injustice.
PROPORTIONALITY BEATS NECESSITY
In applying the new proportionality
test in Hobbs v Guys and St Thomas’
NHS Foundation Trust (SCCO 2015),
Master O’Hare found that whilst it
was reasonable for the Claimant to
bring a low value clinical
negligence claim to conclusion
(settlement £3,500), it was
unreasonable to expect the
Defendant to bear the costs (bill of
£32,000) and assessed costs at
£9,879. It is understand that an oral
review is being sought.
IAN HUFFER
civil@18sjs.com
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Ian Huffer is a member of
the Civil and Personal Injury
Department dealing in all
areas of Personal Injury
litigation including high
value claims, road traffic
and industrial accidents
and industrial disease
claims.
For further information
please contact:
civil@18sjs.com
18 St John Street
Manchester
M3 4EA
T  0161 278 1800
F  0161 278 8220
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 @18stjohn
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