Legal Watch - Personal Injury - Issue 2
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Legal Watch
Personal InjuryIssue Number: 002
16 January 2014
Under the revised CPR 32.2(3) the court has the power to
restrict factual witness evidence. The case of Maclennan v
Sindall (Infrastructure) Ltd (2013) EWHC 4044 (QB) is an early
example of the court exercising this power.
The claimant, who had been employed by the defendant, had
suffered a severe brain injury in an accident at work. Liability
was admitted subject to 25% contributory negligence.
Quantum remained to be determined; the trial was estimated
to last five days, and the trial window started at the end of
March 2014. In respect of loss of earnings, the claimant
proposed to tender the evidence of 43 witnesses. Their
statements concerned four broad issues: whether, but for the
accident, the claimant could have worked abroad and earned
more than he would have in the United Kingdom; whether he
would have retired at 65 or 70; what his promotion prospects
might have been; and what earnings he could reasonably have
expected. The defendant argued that those issues were
common in personal injury cases, and it sought an order
limiting the claimant to calling no more than eight witnesses
as earnings comparators.
The High Court judge held that overall the statements were
extremely brief; they did not attach corroborative or supporting
documentation; and they included assertions about the
availability of work in the UK and abroad, rates of pay, typical
retirement ages, and the claimant's qualities and employment
prospects generally. There was material duplication, though
the repetition of a proposition by a variety of witnesses could
be said to add to its weight, and it was possible that the sum
of the evidence might exceed the probative weight of its parts.
Under CPR 32.2(3), which came into effect as a result of the
Jackson reforms, the court had the power to deploy a range
of possible solutions in order to reduce costs and ensure that
the trial was conducted effectively.
Civil Procedure
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• Damages
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The following considerations were relevant to the exercise of
that power: (a) Rule 32 had to be read as a whole. The court
had to use all the powers at its disposal to ensure the efficient
and fair conduct of the trial, and it would only consider
prohibiting the calling of witnesses after less intrusive
measures had been considered and rejected; (b) a court
seeking to regulate the nature and extent of witness evidence
would generally wish to do so at an early stage, before the
preparation of witness statements. At that stage it might also
be possible for the parties to identify matters which might be
admitted; (c) while the power to exclude or control witness
evidence was best exercised before the preparation of witness
statements, the court was not precluded from exercising it
after statements had been drafted; (d) before exercising its
power to prohibit the adducing of witness statement evidence,
the court had to have the fullest possible information,
adequate preparation time, and guidance from the parties as
to which parts of which statements were said to be otiose,
prolix, or otherwise inadmissible; (e) where the court did
exercise its power, it might be necessary to give the parties
liberty to vary the order by consent or to apply to the court for
a variation. In that regard, the court would be entitled to expect
a considerable degree of co-operation and good sense.
“...the court had thepower to deploy a rangeof possible solutions inorder to reduce costsand ensure that the trialwas conductedeffectively.”
A lack of co-operation could not be justified by an assertion
that the relationship between the parties' legal advisers was
not good. In the instant case, some form of case management
was required. One possibility would be to impose a process
which required the claimant to identify the specific facts and
propositions relied upon from the witness statements; the
defendant to identify which were agreed and disagreed; and
the claimant to indicate which witnesses he intended to call.
However, that was not appropriate in the instant case: time
was short, the parties had not exhibited any great ability to
cooperate, and there was a real risk that a process involving
multiple stages could delay the preparation for trial.
The preferable course was as follows. The claimant would be
permitted to call 14 witnesses to address the issue of
comparative earnings. That was the minimum number he
considered necessary, and the defendant did not demur. He
was to write to each forthwith requesting certain specified
details of their earnings, with supporting documentation. If a
witness declined to co-operate, the claimant was to write to
the defendant's solicitor, setting out the steps he had taken
and the response he received.
The claimant could call 14 additional witnesses to cover
matters other than comparative earnings. That was the critical
mass he considered necessary, and it was likely that their
evidence could be heard swiftly. Any fewer risked causing
injustice. The evidence of the claimant and his wife could also
be tendered. The claimant was to identify the witnesses and
serve any documents as directed; he could not rely on
statements from witnesses who had not been identified,
though there was nothing to stop him from seeking to rely
upon evidence following service of a valid hearsay notice if it
was proper to do so. Where any expert evidence relied on the
statements of individuals who were not on the list of identified
witnesses, there was no need for the experts to exclude
reliance on those witnesses. Finally, both parties had liberty to
vary the scheme by agreement or to apply to the court for a
variation.
Maclennan v Sindall (Infrastructure) Ltd (2013) EWHC 4044
(QB)
03
The case of Brown (deceased) v Hamid (2013) EWHC 4067
(QB) will be of interest to those dealing with fatal accident
cases.
The deceased had died in 2012. He had been ill for many years
but it was admitted that his death had been accelerated as a
result of the defendant’s clinical negligence. On the evidence
the judge found that the defendant’s failure properly to
diagnose the deceased’s condition had accelerated the onset
of more severe symptoms associated with his pre-existing
condition by a period of about 12 months.
Although damages for loss of expectation of life were not
recoverable, in assessing damages for pain and suffering the
court was entitled to take into account any suffering likely to
have been caused to the deceased by his awareness that his
expectation of life had been reduced. He had suffered
significant distress and anxiety as a result of the impact of the
delayed diagnosis on his health. The appropriate award of
general damages was £8,500.
An award of £11,800 was made for bereavement under the
Fatal Accidents Act 1976. Although funeral expenses were
usually recoverable under S3(5) of the 1976 Act, it was not
appropriate to make such an award in the instant case
because of the acceleration of symptoms associated with a
pre-existing condition by a relatively short period.
An award for loss of earnings based on a period of five years
and four months was made in the sum of £2,000 and loss of
DIY skills led to an award of £2,500. No award was made in
respect of care, medical fees, accommodation or travel as
there was no evidence that these had been increased as a
result of the defendant's negligence.
Although the principle of loss of special consortium had been
recognised in a husband and wife relationship, there was a
distinct overlap with the award of damages for bereavement.
Moreover, the case law demonstrated substantially longer
periods over which such a loss had taken place. In the
circumstances, it was not appropriate to found a separate
head of damages on that basis in the instant case.
“Although the principle ofloss of specialconsortium had beenrecognised in a husbandand wife relationship…itwas not appropriate tofound a separate head ofdamages on that basis inthe instant case.”
A second case under this heading is Humphrey v Aegis
Defence Services Ltd [Lawtel 15/01/2014]. It is very much a
case on its own facts but shows how insurance payments from
third parties may complicate the assessment of damages in a
personal injury case.
The claimant had been a member of the Royal Marines and
undertook close protection work in Iraq. He sustained
permanent shoulder injuries during a stretcher-carrying training
exercise after a team member dropped the stretcher. He
contended that the defendant should not have allowed the
team member to take part as he was unfit. The defendant
denied liability. The claimant had the benefit of UK insurance
payments which amounted to £31,000 and was also entitled
to insurance payments under US law, receiving $1,200 a week.
The claimant and the US insurer were negotiating a lump sum
to replace the weekly payments. He had made it clear that he
would give credit for any insurance payments made if he
succeeded at trial.
In this application for a split trial of the issue of liability the
claimant submitted that if he succeeded at the forthcoming
trial then the judge would be placed in the impossible situation
04
Damages
05
of determining quantum before a lump sum was agreed in
respect of the $1,200 a week. The judge would then have to
offset the weekly payments against any damages awarded,
and would be forced to make an order that would leave the
claimant significantly short of the amount that he would have
recovered if a lump sum had been agreed instead. The
defendant submitted that it would not be proportionate to
order a split trial as it was not known when the lump sum might
be agreed and the issue of quantum might be pushed off to
an unknown date in the future.
“...the claimant’ssubmission that hisdamages would besignificantly and unfairlyreduced if the court hadto quantify them withoutknowing what lump sumhe would receive from theinsurer was a strong one”
Allowing the application the deputy High Court judge held that
the claimant’s submission that his damages would be
significantly and unfairly reduced if the court had to quantify
them without knowing what lump sum he would receive from
the insurer was a strong one. Further, it was possible and likely
that if he was successful at a trial of liability, that quantum
could be agreed and a further trial would be avoided, along
with the associated costs. It might also force the parties to
come to an agreement on the lump sum prior to the trial of
quantum. If the defendant were to succeed at the liability trial,
then there would be no need for the quantum trial. On balance,
any duplication of work with regard to a second trial was small
compared to the advantages of a split trial. The claimant had
also argued that there was a risk that under US law the insurer
would seek reimbursement of damages recovered in the
action. However, as the claim was against the employer rather
than a third party, there was only a very small possibility of a
"double deduction". If that had been the claimant's only
submission then it would not have been sufficient to justify a
split trial. However, the difficulty of quantifying damages in the
absence of a lump sum meant that the application should
succeed.
Brown (deceased) v Hamid (2013) EWHC 4067 (QB)
Humphrey v Aegis Defence Services Ltd
[Lawtel 15/01/2014]
Two of the considerations that the recent reforms in CPR have
brought into focus are court resources and the impact of case
management decisions in one case on the parties in other
disputes. The significance of these is illustrated in the planning
case of London & Henley (Middle Brook Street) Ltd and others
v Secretary of State for Communities & Local Government and
others (2013) EWHC 4207 (Admin).
The parties to the dispute applied for an adjournment of the
hearing of the matter to allow time to reach a settlement. They
submitted that negotiation of the settlement had been
unusually complicated and time-consuming but was close to
completion, and if the court allowed the matter to reach finality
its time would not be used needlessly and subsequent
proceedings could be avoided.
‘…the effect of theadjournment… would bedamaging to somedegree to the interests ofparties in otherproceedings’
The High Court judge allowed the application finding that it
was realistic and just to adjourn the hearing in the exceptional
circumstances of the case. However, two points had to be
made. First, the effect of the adjournment would be that the
court's time could not be used to enable any other planning
case to be heard, at what would be extremely short notice.
Thus it would be damaging to some degree to the interests of
parties in other proceedings having access to the court, and
on the effective use of the court's resources. Second, the court
had to regard the case as effectively settled: that was the only
proper basis on which the adjournment could be granted. The
case would have no priority over any others: it would be dealt
with as if proceedings had been freshly issued. That would
mean that if there was any difficulty in effecting the settlement,
it would be several months before the case could come back
into the list. Parties had to understand that there were
consequences if the court was given no sensible choice but
to adjourn at the last minute.
London & Henley (Middle Brook Street) Ltd and others v
Secretary of State for Communities & Local Government and
others (2013) EWHC 4207 (Admin)
06
Civil Procedure
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