Legal WatchPersonal InjuryMarch 2014

Issue 009

02

Biddick (deceased) v Morcom (2014) EWCA Civ 182 is a

case which deals with a householder’s liability towards

a contractor, injured whilst working at his property. It

illustrates the level of involvement required on the part of the

householder to attract liability for the contractor’s injuries.

The appellant/defendant, the personal representatives of

the deceased householder, appealed against a judgment

that his estate was liable to the respondent/claimant in

negligence. The claimant cross-appealed against a finding

that he was two-thirds contributorily negligent.

The claimant, a multi-skilled tradesman, had been seriously

injured while fitting insulation in the deceased’s loft. Entry

to the loft was via a ladder through a hinged hatch door,

which opened by being pulled downwards with a long

pole. A hook in the pole could be used to lock the door.

The deceased, who was 80 years old, suggested that while

the claimant was insulating the inside of the hatch door, he,

the deceased, would stand underneath, keeping the door in

the locked position with the pole to prevent the mechanism

working itself loose from the vibrations of the claimant’s

drill. The claimant thought that was a fanciful possibility, but

agreed to the proposal. The claimant fell through the loft

aperture when the deceased left his position to answer the

phone.

The claimant’s primary case was that the hatch opened as

a result of vibration. The judge rejected that claim. He also

rejected the possibility that the claimant had fallen on the

door. He thought it most likely that the lock had not been fully

in position and that the claimant had overreached himself,

applying a degree of force to a hatch door that was only

partially supported. He concluded that if the deceased had

not involved himself in the work performed by the claimant,

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:

MBIG Seminar 22.05.2014 - Wellcome Collection,

London, NW1

In This Issue:

• Occupiers’ liability

• Employers’ liability

• Jackson/Mitchell

• From within Plexus

• Watch this space

Occupiers’ liability

03

there would have been no basis for a finding of negligence,

but that he had brought himself into close proximity with

the claimant by virtue of his proposal. Leaving his position

to answer the phone, the deceased had failed to exercise

his duty of care to the requisite standard and was liable

to the extent of a third. The issues on appeal were (i) the

cause of the claimant’s fall; (ii) the alleged duty of care by

the deceased; (iii) the extent of contributory negligence by

the claimant.

Rejecting both the appeal and cross-appeal, the Court of

Appeal found on the evidence, it was impossible to say that

the judge had arrived at a conclusion regarding the cause of

the claimant’s fall which had not been open to him .

The deceased had assumed responsibility, not for bearing

the claimant’s weight if he happened to fall on the hatch door,

but for undertaking to ensure that the latch remained closed.

In involving himself in a potentially hazardous activity, he put

himself in a degree of proximity to the claimant such that

it was foreseeable that if he neglected his task, the hatch

might work itself open and cause the claimant to fall and

suffer injury. It was fair and reasonable to find that a duty of

care had arisen. Even though the deceased’s concern had

been vibration, and vibration had not been found to be the

cause of the hatch opening, the deceased had nevertheless

chosen to abandon his post, which was a breach of his duty

of care. While reliance was a prerequisite in economic loss

cases, it did not matter that the claimant had not relied on

the deceased’s input. Once the deceased had undertaken

to ensure that the hatch remained closed, he had a duty to

perform that task carefully even if the claimant did not see

his role as an element in his own safety.

“...the deceased had…. chosen to abandon his post, which was a breach of his duty of care”The judge’s reasoning for the apportionment of liability was

entirely sound: The deceased had been negligent in failing

properly to perform the small task which he undertook, but

the claimant was principally to blame for the unsafe method

of work which he chose to adopt.

Biddick (deceased) v Morcom (2014) EWCA Civ 182

04

Employers’ liabilityIn the case of Humphrey v Aegis Defence Services Ltd [Lawtel

05/03/2014] the claimant, a former marine, had worked as

a close protection escort for military personnel in Iraq under

contract to the defendant in teams which included Iraqi

interpreters. Physical fitness was a condition of his contract

and he was regularly tested. Interpreters were also tested

but were less motivated to be physically fit as they were in

short supply and were likely to be employed even if they

failed. During a test, held in the afternoon, a team of four

men, including an interpreter, carried a man on a stretcher

by one handle each. The team was briefed by an instructor,

a medic was present, participants were asked if they had

any injuries before and after the test and a supervisor ran

alongside the teams during the exercise. Participants had

been given a week’s notice. The claimant had read the

standard operating procedure instructions which stated

that it was the responsibility of individuals to bring safety

hazards to the attention of team leaders. He told the court

that he had had reservations about the interpreter’s capacity

from an early stage as he had looked uncomfortable wearing

the heavy, specified kit. During the test and without warning

the interpreter let go of his handle, causing the claimant’s

arm to be wrenched downwards, injuring his shoulder.

The defendant had been in control of the fitness test and

accepted that they had owed the claimant a duty of care.

Rejecting the claimant’s claim, the deputy High Court judge

held that interpreters were usually civilians rather than ex-

military and fitness was not such an important part of their

lives. It was sensible for the defendant, who had made real

efforts to increase the interpreters’ fitness levels, to include

them in training exercises, but they had previously lost

their grip on stretchers and dropped out of exercises. The

claimant and other contractors grumbled about them and

their different treatment, but had made no formal complaints

about their impact on safety even though individuals were

responsible for bringing safety hazards to the defendant’s

attention. The claimant was a former soldier who took

his duty, to himself and his colleagues, seriously. It was

foreseeable that an unfit interpreter would drop a stretcher,

but foreseeable only that it would cause minor soft tissue

injury rather than serious injury.

“It was foreseeable that an unfit interpreter would drop a stretcher, but foreseeable only that it would cause minor soft tissue injury rather than serious injury.”The defendant had carried out a risk assessment and

reviewed it immediately before the test. The interpreter had

not indicated that he would give up and no concern had

been voiced by the claimant or other team members to the

supervisor. The weight being carried on the stretcher was

not excessive and, while the test was conducted in the

afternoon, there was no evidence that it was excessively

hot or that heat exhaustion was a causative factor. The

injury was plainly caused by the interpreter’s unfitness and

decision to stop. The protocol was to replace a team member

who showed signs of injury or high fatigue, but a fitness test

had to simulate actual conditions, so prematurely removing

someone who was out of breath would have rendered the

test worthless. The interpreter showed signs of strain but

the claimant and the supervisor had had the opportunity to

observe him and neither considered him to be a risk to their

safety. The supervisor had the primary responsibility, but the

team members knew their responsibility to each other and

there was no evidence that they mentioned anything among

themselves or halted to give the interpreter a rest. They did

not believe that he represented a hazard and it was thought

05

that the team was within safe parameters.

The defendant’s work in Iraq was a desirable activity within

the meaning of the S1 Compensation Act 2006. Interpreters

were essential and it was reasonable to apply more lenient

fitness standards to them because of their scarcity. If

the purpose or social value of an activity was sufficiently

important, it justified an increased assumption of risk. It

was reasonable of the defendant to require interpreters to

take part in the test even if they were not at the minimum

standard of fitness, which introduced extra danger, but if

that risk was not taken important work would have been

prevented. The court was not persuaded that the defendant

had not monitored the exercise carefully and was not

satisfied that there had been a failure of duty of care.

A second case under this heading is McCade v Critchlow

and others [Lawtel 04/03/2014]. It includes a brief review of

the threshold that a claimant must establish to found a claim

for work related stress.

The claimant was employed by the fourth defendant firm of

solicitors as a paralegal. The first and second defendants

were partners in the firm and the third defendant was the

managing partner. The claimant’s employment was lawfully

terminated for gross misconduct, after which she brought

employment tribunal proceedings for sex discrimination

which were dismissed. Following the termination of

her employment, she was diagnosed with paranoid

schizophrenia. She alleged that, whilst employed by the

fourth defendant, she had not received the training, support

and feedback that she would expect as a paralegal. She

considered that she had been doing work for which she had

not been employed, namely secretarial work, which demotion

to administrative status she perceived as sex discrimination.

The claimant made allegations of professional misconduct

against the second defendant claiming she had received

incomplete instructions from him and that he had failed to

provide any helpful guidance and support, in breach of the

implied duty of mutual trust and confidence. The claimant

also alleged that that had caused her distress and that, in

failing to see the second defendant as a problem, the fourth

defendant had been negligent. She further alleged that she

had caught the first defendant “backstabbing” her and that

he had neglected her. The claimant contended that the third

defendant had been aware that she had been sidelined from

paralegal work and of the stress caused to her as a result of

the conduct of and issues experienced with the first three

defendants.

The claimant conceded in the witness box that the

evidence showed that not only had the second defendant’s

instructions been appropriately formulated, but that her

response to them had been inadequate or incorrect.

Dismissing the claim, the deputy High Court judge held

that the claimant was an unreliable witness, as was evident

from the inconsistency of her complaints, her concessions

on important matters and her assertions about the second

defendant. Her criticisms of all four defendants were

rejected; they had been unwarranted and unfair. Conversely,

the testimony of the first three defendants was accepted.

“the indications of impending harm to health arising from stress at work had to be plain enough for (the defendants) to realise they should do something about it”The first and second defendants had done their best in

a competent manner consistent with the implied duty

of mutual trust and confidence. The claimant had been

provided with work within the ambit of her employment

contract; the tasks given to her had fallen within work

properly given to a paralegal without a hint of unequal

treatment or discrimination. The defendants had not (a)

intended to demote, ostracise or leave the claimant lacking

in support; (b) failed to provide adequate guidance; (c)

engaged in sexual discrimination or other unequal treatment.

The factual basis relied upon had simply not been made

06

out. There had been no proven breach of duty arising under

contract or at common law. The threshold that the claimant

had to establish order to trigger a duty on the defendants to

take steps to prevent injury in the workplace, namely that

the indications of impending harm to health arising from

stress at work had to be plain enough for them to realise

that they should do something about it, was not made out.

There was no evidence that the claimant had demonstrated

signs of stress at work or that she had provided indications

of impending harm to health that would properly allow the

court to find a causal connection between the development

of her paranoid schizophrenia and her employment. It was

possible for stress to be caused by an employer’s conduct

whereby an employee was starved of duties he had been

employed to undertake, however there was no factual basis

to support such a conclusion. The claimant had failed to

establish any injury sounding in damages attributable to

her complaints about her workplace experiences. The claim

was hopeless.

Humphrey v Aegis Defence Services Ltd [Lawtel

05/03/2014]

McCade v Critchlow and others [Lawtel 04/03/2014]

07

Jackson/MitchellThis week’s case under this heading is Associated Electrical

Industries Limited v Alstom (UK) (2014) EWHC 430 (Comm)

The claimant had claimed an indemnity or a contribution

from the defendant in respect of a claim brought against

the claimant and the defendant for damages following a

former worker’s death from mesothelioma. The claimant

served its claim form in September 2013. The defendant

filed an acknowledgement of service on 1 October stating

its intention to defend the claim, giving the claimant until 29

October to serve the particulars of claim. On 29 October,

the claimant requested an extension of time from the

defendant. The defendant refused and made its application

on 13 November. The claimant served the particulars on 18

November and applied for a retrospective extension of time

in January 2014. The court considered (i) the relevance of the

timing of the claimant’s extension application; (ii) whether its

non-compliance was trivial; (iii) whether there was a good

reason for non-compliance; (iv) whether the possibility of

the claimant issuing fresh proceedings was relevant; (v) the

balance of justice, having regard to the requirements of the

CPR.

“It was not for the instant court to determine whether a second action should be struck out as an abuse.”The High Court judge held that the timing of the extension

of time application was inconsequential so far as it

concerned criticism of its delay after the issue of the

defendant’s strike-out application. Cross-applications for

extensions of time had little practical purpose: the court

had to hear two applications which were two sides of the

same coin. However, that did not answer the criticism that

the claimant had not applied for an extension before the 29

October deadline or retrospectively between 29 October

and 13 November. The failure to apply for an extension

before 13 November did not give the CPR’s time limits the

respect that was demanded.

The claimant could have asked the defendant for an

extension long enough before the deadline to enable it to

apply to court if necessary; by the time it had asked, any

application would have to be made retrospectively. That

displayed indifference to compliance with the CPR. The

period of non-compliance, 20 days, was not trivial.

Investigation of the claim had not been straightforward.

However, the claimant appeared to have carried out

investigations before issuing proceedings, and the

particulars did not reflect much by way of further

investigations into the key issue. There had been sufficient

time to draft the pleading after the claimant learned that the

claim was disputed. It had not shown good reason for not

serving the pleading by 29 October. Further, if difficulties

in investigating the claim had justified the particulars being

late, the claimant should have made a timely request for an

extension.

It was not for the instant court to determine whether a

second action should be struck out as an abuse. However,

if the defendant’s application were granted, there was the

real prospect that it would result in further litigation and the

substantive dispute being determined after more cost delay.

Courts were discouraged from giving too much weight to

the prospect of unprofitable hearings, but Mitchell did not

decide that that had always to be entirely disregarded.

If the decision depended only on what would be just and

fair between the parties, the court would not strike out

the claim and would extend time, given that the non-

compliance had been remedied after 20 days and had not

disadvantaged the defendant. However, the court had to

strike a balance between the interests of the parties and

08

the interests of others who might be affected. Nothing in

Mitchell suggested that the court should disregard justice

between the parties altogether. Where relief from sanctions

was sought, CPR 3.9 required the court to consider all the

circumstances; Mitchell said that considerations other than

those specifically mentioned in CPR 3.9 were to be given

less weight. That did not mean that, when exercising all

powers under the CPR, the court had to give more weight

to those specific considerations than to other aspects of

the overriding objective and other relevant circumstances.

Mitchell’s guidance was directed to applications under CPR

3.9. However, that did not help the claimant. The court still

had to give effect to the overriding objective. The point at

issue was the importance of enforcing the requirements of

the CPR. It was considered that once the culture of a firm

line on enforcement was accepted, there would be fewer

applications under CPR 3.9. Although, as between the

parties, it was disproportionate to strike out the claim, the

emphasis given to enforcement of the CPR to encourage

procedural discipline led to the conclusion that the claim

should be struck out and the extension of time refused.

Associated Electrical Industries Limited v Alstom (UK)

(2014) EWHC 430 (Comm)

09

From within Plexus

Mirza v Norbert Dentressangle Logistics LimitedWe represented the defendant in this claim, brought by the

claimant following a road traffic accident. The defendant’s

lorry driver collided with the rear of a car owned by the

claimant. The lorry driver reported that the circumstances of

the accident were suspicious, indicating that the accident

had been staged. Those suspicions increased when claims

for personal injury were brought by, amongst others the

claimant, who later accepted that she was not in the car

at the time of the collision. None of the claims for personal

injury progressed, but the claimant pursued a claim for

damages for credit hire through Accident Exchange, and for

the loss of value of her car. The claim was valued at around

£46,000, predominantly credit hire.

During the course of the proceedings we obtained various

orders against the claimant, and in particular an order that

she disclose documentation in relation to her car, and if she

could not, that she explain who the car was sold to, when

it was sold, and how much she received for it. The claimant

did not comply with the order, and we obtained an unless

order, the default position being strike out. The claimant

complied with some, but not all of the requirements of the

unless order, and we obtained an order that the case be

struck out as a result.

The claimant made an application for relief pursuant to

CPR 3.9, and the matter came before DDJ Stacey sitting

in Walsall County Court on 17 December. He held that the

default by the claimant was not trivial, and that there was

no good reason for her default, and as such the sanction

should “usually” apply. However, this meant that the court

had discretion, and litigation had to be conducted justly.

Exercising that discretion he found that the case was ready

for trial, it was a large case, and that the defendant had

not suffered any prejudice, and indeed had obtained some

useful cross examination material for use at trial. In light of

this, and because the claimant had only failed to comply

with one order, her application was allowed and the case

reinstated.

That decision by DDJ Stacey was made the same day that

the Court of Appeal handed down judgment in Durrant v

Chief Constable of Avon & Somerset Constabulary (2013)

EWCA CA Civ 1624, Lord Justice Richards recording, inter

alia, “Equally, however, if the message sent out by Mitchell is

not to be undermined, it is vital that decisions under CPR 3.9

which fail to follow the robust approach laid down in that case

should not be allowed to stand. Failure to follow that approach

constitutes an error of principle entitling an appeal court to

interfere with the discretionary decision of the first instance

judge. It is likely also to lead to a decision that is plainly wrong,

justifying intervention on that basis too”

We appealed to the the designated civil judge, HHJ Gregory,

who heard the appeal on 3 March. He held that the decision

of DDJ Stacey was wrong. He had taken into consideration

factors that were irrelevant having found, quite correctly that

there was a non trivial default, with no good reason for it. It

followed that the decision of DDJ Stacey was reversed and

the claimant’s case stands struck out with our client’s costs

to be paid by the claimant.

Mirza v Norbert Dentressangle Logistics Limited

For further details contact:

Justin Collins

T: 0207 220 5928

E: Justin.collins@plexuslaw.co.uk

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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Watch this space

The Discount RateIn response to a question put to the government in the

House of Lords the following statement was made:

“The discount rate is currently under review, and no decision

has yet been taken on what the rate should be or how it should

be set. This is a very complex issue, and the review is being

taken forward on as timely a basis as possible.”

Mesothelioma Act 2014As a result of The Mesothelioma Act 2014 (Commencement

No.1) Order 2014, substantial part of the Act and the

payment scheme that it introduces will come into force on

31 March.