1. PERSONAL INJURY UPDATE
NOVEMBER 201518 ST JOHN STREET CHAMBERS NEWSLETTER
INSIDE
Ian Huffer provides his regular Personal Injury Law update. This month he covers Causation
of Loss, Withdrawal of Admission, Motor Insurer’s Bureau (Accidents Abroad), Clinical
Negligence, Costs (QOCS Transitional Provisions and Splitting Bills).
CAUSATION OF LOSS
The controversial High Court
decision in Christine Reaney v
University of North Staffordshire
NHS Foundation Trust ([2014]
EWHC 3016) has been
overturned on appeal [2015]
EWCA Civ 1119.
Mrs. Reaney (67) developed
transverse myelitis which put
her in the same condition as a
T7 paraplegic, that is, someone
who had suffered a severe
traumatic spinal cord injury. In
hospital, the Claimant
developed, as a result of the
Defendants’ negligence, a
number of deep pressure sores
which caused osteomyelitis
(infection of the bone marrow)
and flexion contractures of her
legs. Although the Claimant
would always, because of the
transverse myelitis, have been
confined to a wheelchair for
the rest of her life, the pressure
sores had caused the Claimant
to require two carers on a 24/7
basis, rather than only 7 hours
of care per week, a larger
house and a larger vehicle
than she would have required.
“I see this case as a reflection
of the principle that a tortfeasor
must take his victim as he finds
him and if that involves making
the victim's current damaged
condition worse, then he (the
tortfeasor) must make full
compensation for that
worsened condition… In my
judgment, on the evidence,
the Defendants' negligence
has made the Claimant's
position materially and
significantly worse than it would
have been but for that
negligence. She would not
have required the significant
care package (and the
accommodation consequent
upon it) that she now requires
but for the negligence”.
(Foskett J). The Claimant was
entitled to full compensation of
all her care, physiotherapy and
accommodation costs.
The Court of Appeal held that
the judge's conclusion that all
of Mrs Reaney's care and
physiotherapy needs were
caused by the Defendants'
negligence could not stand.
At paragraph 19 of his
judgment, the Master of Rolls
said “During the course of oral
argument, it became clear that
there was no real difference
between the parties as to the
correct approach to causation
of loss in cases such as the
present. ……. the Defendant is
entitled to take the Claimant as
it finds her. It did not injure a
previously fit and able-bodied
person. It injured a woman
who was a T7 paraplegic
and who, as a result of
her condition, already had
considerable care and other
needs. It was (rightly) common
ground that if the Defendants'
negligence caused Mrs Reaney
to have care and other needs
which were substantially of the
same kind as her pre-existing
needs, then the damage
caused by the negligence was
the additional needs. On the
other hand, if the needs
caused by the negligence
were qualitatively different from
her pre-existing needs, then
those needs were caused
in their entirety by the
negligence”.
The Court of Appeal’s analysis
of the judge’s reasoning was
that he was not stating or
implying that the significant
care package required as a
result of the negligence was
qualitatively different from
the care that would have
been required but for the
negligence. The words used
by the trial judge
were consistent with a
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2. 18 ST JOHN STREET CHAMBERS NEWSLETTERNOVEMBER 2015
finding that the significant care
package was quantitatively, but
not qualitatively, different from
what would have been required
but for the negligence i.e. "more
of the same". The Court of Appeal
held the judge was really saying
that the care package was "more
of the same" and not different in
kind. Accordingly, he was wrong
to hold that the need for it was
attributable to the negligence.
WITHDRAWAL OF ADMISSION
In Cavell v Transport for London
[2015] EWHC 2283 (QB) the
Claimant was injured whilst riding
his cycle. The Defendant admitted
liability, the admission being
stated to be “subject to
causation”. The Claimant
pleaded the admission in the
particulars of claim. The
Defendant applied to withdraw
from the admission. The judge
(Davies J) refused the application.
An admission of liability “subject to
causation” was still an admission
and the Defendant required the
Court’s permission to withdraw.
Having examined the matters put
forward by the Defendant, the
judge concluded that it was not in
the interests of justice (Part 14
Practice Direction; Woodland v
Stopford [2011] EWCA Civ 266) to
permit withdrawal of the
admission.
“Since the grounds relied on by
the Defendant have no substance
the application must fail. In fact it
goes further than that. This is a
case in which it is said that the
admission was made in error. No
explanation at all is offered as to
how this error was made. The firm
which made the error is hugely
experienced in the type of claim
involved here”
“It cannot be in those interests to
permit the withdrawal of an
admission made after mature
reflection of a claim by highly
competent professional advisors
when there is not a scintilla of
evidence to suggest that the
admission was not properly made.
Were it to be otherwise civil
litigation on any sensible basis
would be impossible”.
MOTOR INSURER’S BUREAU -
ACCIDENTS ABROAD
In Moreno v Motor Insurers Bureau
[2015] EWHC 1002 (QB) the
Claimant who lived in England
was injured by an uninsured driver
whilst on holiday in Greece and
sought compensation from the
MIB under regulation 13(2) of the
Motor Vehicles (Compulsory
Insurance) (Information Centre and
Compensation Body) Regulations
2003. The MIB admitted liability
and the issue was whether the
applicable rules to assess
quantum are those of England
and Wales or of Greece.
Giving judgment at the first
instance, Gilbart J considered that
he was bound by Jacobs v Motor
Insurers Bureau [2010] EWCA Civ
1208 and held that compensation
would be according to the law of
England and Wales. However, he
noted that there was force in
arguments that Jacobs was
wrongly decided (not least the
argument that a Claimant injured
by an uninsured driver abroad is
likely to achieve a more
favourable award of damages
than if injured by an insured driver)
in the light of the Rome II
Regulations and granted
permission to appeal to directly to
the Supreme Court, leapfrogging
the Court of Appeal.
CLINICAL NEGLIGENCE
In Royal Wolverhampton Hospitals
NHS Trust -v- Evans [2015] EWCA
Civ 1059 the Court of Appeal
dismissed an appeal by the
Defendant against a finding of
liability. The full case bears
reading on a number of points in
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3. 18 ST JOHN STREET CHAMBERS NEWSLETTER NOVEMBER 2015
relation to the trial judge’s
assessment of the evidence, in
particular, the inferences that can
be drawn if a witness statement
fails to deal with the crucial part of
how the operation was
performed. The Appeal court held
that the omissions were justifiable
reasons for the trial judge not
being impressed with the
evidence of the surgeon who
performed the operation.
“To my mind, it is most surprising
that a consultant surgeon, in
receipt of legal advice, would not
realise that he was supposed to
give a detailed account of the
operation in his witness statement
which was prepared at a time
when the issues in the case were
clear” (Dame Janet Smith)
COSTS - QOCS TRANSITIONAL
PROVISIONS
In Casseldine -v- the Diocese of
Llandaff Board for Social
Responsibility [2015] 17.7.15 a
personal injury claim was pursued
with the first solicitor under a (pre-
Jackson) CFA dated March 2012.
The first solicitor terminated the
agreement in January 2013 and
the Claimant entered onto a (post
Jackson) CFA with second
solicitors in August 2013. The claim
proceeded and was dismissed at
trial. The judge (Regional Cost
Judge Phillips, Cardiff County
Court) held that the Claimant
could rely upon the costs
protection afforded by CPR 44.17
as she had not entered into
a pre-commencement funding
agreement as defined by CPR
48.2.
No proceedings were commenced
under the first CFA but were
conducted under the second
CFA. The first CFA had been
terminated, thus no success fee or
any costs were payable under the
first CFA. Had the Claimant won at
trial, the court would not have
been in a position to order the
Defendant to pay any additional
liabilities. The transitional provisions
(CPR 44.17 and 48.2) should be
read in context and the purpose
of the rules was to achieve a quid
pro quo so that post 1.4.13 QOCS
protection applied where a
Defendant was not faced with
any additional liability. The
decision of Master Howarth in
Landau v Big Bus Company Ltd
(20.11.14) was distinguished as it
concerned a post Jackson CFA in
respect of an appeal to the Court
of Appeal where the action had
proceeded to trial on a pre-
Jackson CFA. It should be noted
that the decision in Casseldine is
to be appealed.
COSTS - SPLITTING BILLS
Master Gordon-Saker (Senior Costs
Judge) ruled in BP v Cardiff & Vale
University Local Health Board
[2015] EWHC B13 (Costs) that that
it was “convenient and
necessary” where a costs
management order had been
made for bills to be drawn up “in
parts which reflect the phases” to
distinguish between work carried
out before and after 1 April 2013 in
any case involving proportionality.
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
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