GOODBYE JPIL

I have decided to end my editorial work for the Journal of Personal Injury Law,  to spend more time actively campaigning for law reform. It has been six great years working with a great team. Thank you and goodbye!

CRASH INVESTIGATION REPORT ADMISSIBLE IN CIVIL ACTION

Rogers and another v Hoyle [2014] EWCA Civ 257

Common sense from the common law

The Witchampton biplane crash scene from 15 May 2011

The family of a former captain in the Royal Marines who was killed in a tragic air accident have successfully resisted the defendant insurer’s attempts to exclude a damming Air Accident Investigation Report from being admitted in evidence in their claim against the pilot, who survived the crash.  

The claimants’ case is that the accident was caused by the pilot negligently attempting a dangerous loop the loop manoeuvre, too close to the ground and without adequate training.  The pilot blames a mechanical fault.

As is well known, the Air Accident Investigation Branch responsible for investigating such incidents is part of the Department for Transport.  Its reports are not commissioned the parties involved in a civil claim.  Its powers are set out in Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996.  It is an independent agency and so the form and content of its reports are not governed by the Civil Procedure Rules, Part 35 or otherwise. 

The admissibility of an AAIB report as evidence in a civil claim is long been established.  These reports do not constitute a judicial determination that would be caught by the rule in Hollington v Hewthorn [1943] KB 857.  It is also well established that it is the role of the court to decide the relevance of the various statements of fact and opinion set out within the report and to judge the weight to be given to them.

In this particular case, the AAIB report’s synopsis included the following observation about the biplane in the moments before the crash: ‘.[it]..was seen by observers on the ground to pull up into a loop and during the manoeuvre it entered a spin from which it did not recover. The manoeuvre started at 1,500 feet agl and there was insufficient height for the pilot to recover from the subsequent spin.’ 

The report also included various statements of fact and opinion that the claimants sought to rely on to support its case. It expressed the view that there had been insufficient height for the pilot to recover from the loop. It also claimed that the pilot ‘was not formally trained in aerobatics and had limited experience of spin recovery’.

The insurers raised a number of technical objections, all of which failed both at first instance and on appeal.

The decision affirms what was obvious, that AAIB reports are prima facie admissible in evidence in a civil action.  The fact that parts of the report may contain unattributed statements and expressions of opinion on matters that the author has no expertise does not make the entire report inadmissible.  It is for the trial judge to make use of the report as he or she thinks fit and to excise from it anything that is inadmissible. 

At paragraph 80 of Lord Justice Clarke’s judgment he said:

‘For the judge to be denied sight of a report of this character - authoritative, independent, prompt and detailed - and for any experts called to be unable to refer to it in court, when it is freely available to the public, is difficult to justify…..their use considerably assists the efficient and speedy resolution of claims; and the majority of potential civil claims arising from civil aviation accidents settle on the basis of AAIB reports.’

The colossal sums that  Lloyds of London and other liability insurers seem prepared to fling at speculative challenges of this kind, apparently with a thought for the way this prolongs the suffering of the victim's family,  never ceases to astonish.  Of course insurers can do so with immunity, secure in the knowledge that their folly is effectively bankrolled by the long suffering premium paying public.

FAIRER TREATMENT FOR THE VULNERABLE

Why children and the mentally handicapped deserve better treatment

Every year hundreds children and mentally handicapped people are injured by hit and run drivers on our roads.  Unfortunately their compensatory entitlement is jeopardised by the Department for Transport’s arrangements with the Motor Insurers Bureau (MIB) under the Untraced Drivers Agreement 2003.

 

Our national law provision for victims of hit and run drivers

The MIB’s main function is to fulfil the United Kingdom’s obligation under European Community law to appoint a compensatory body to deal with these claims.  It will be readily appreciated that court proceedings are not possible in the absence of an identifiable defendant to serve.  However there are concerns that children and mentally handicapped accident victims do not receive fair treatment under the present regime.

The MIB is a private company set up and managed exclusively by senior executives appointed from every major insurer that underwrites motor insurance in the UK.  There is no independent representation on the MIB Board by other stakeholders or special interest groups.  Although it is a non-profit making organisation, its personnel are often recruited from the insurance sector and it is itself an important part of that multi-billion pound industry. 

The Department for Transport admits that it does not monitor or otherwise influence the way in which the MIB investigate and deal with claims under the 2003 Agreement.  This arrangement confers a wide autonomy in the way in which these claims are investigated and settled; it is one that lacks transparency and accountability. 

Proper Safeguards for the vulnerable

In a normal court action against an identified and insured driver, the Civil Procedure Rules provide a triple set of safeguards whenever a claimant is a child or mentally incapacitated:

·         Firstly, Rule 21.2 insists on the appointment of a litigation friend in proceedings and where there is no one suitable, the Official Solicitor assumes that role.  

·         Secondly, Practice Direction 21.5 insists on a claimant submitting a legal opinion on the whether a proposed settlement is fair, in all but the simplest of cases, so it can arrive at an informed decision. 

·         Thirdly, Rule 21.10 states that any settlement or compromise (whether before or after proceedings are issued) is only valid if it has been approved by the Court.  

The vulnerability of protected parties to any lesser regime is perfectly illustrated in a very recent Supreme Court case.  In Dunhill v Bergin the Court set aside a consent order that had been agreed on behalf of a protected party in the presence of a trainee solicitor and a barrister who were representing her.  No one appreciated that she was mentally incapacitated and so, her lawyers did not appoint a litigation friend or make a formal application for the £12,500 settlement to be approved by a judge under Rule 21.  To make matters worse, they seriously underestimated the true impact of the victims’ injuries.  Subsequently, it became apparent that her claim was worth up to £2,000,000. 

The Supreme Court ruled that the consent order should be set aside, even though the claimant had legal representation and notwithstanding that no one realised that she was mentally handicapped at the time, because the agreement’s validity depended upon the parties obtaining court approval.   Lady Justice Hale, who delivered the Supreme Court’s unanimous ruling in Dunhill, said:

‘...the Civil Procedure Rules is clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers.’ 

In the context of an untraced driver claim under the 2003 Agreement, she might well have added that they also deserve protection from a third source: from the commercial interests of the motor insurance companies that control the MIB.

In 2010 Sir Rupert Jackson’s extensive evidence based investigation into personal injury litigation costs revealed a widespread concern that insurers were consistently attempting to settle claims at levels that were significantly less than the victims’ true compensatory entitlement. 

Gaps in protection

Because the basic safeguards provided by the CPR do not extend to the 2003 Agreement, a child or mentally handicapped individual is exposed to being confronted by the MIB with an offer to settle that is effectively a fait accompli, with insufficient means of telling whether it is a fair proposal or not.  Some claims involve complex issues that involve a question of judgment on liability, causation and quantum – sometimes involving a number of different experts, all chosen and instructed by the MIB. 

The six week period for appealing an MIB’s decision or offer to settle does not provide nearly enough time, in a complicated claim, to secure expert second opinions and legal advice; assuming that the applicant realises the need. 

There are growing concerns that the lack of supervision, transparency and accountability as to the way the MIB operates, compounded by the absence of suitable legal safeguards, as outlined above, poses a real and significant risk that children and the mentally handicapped are exposed to unfair compromises and settlements at undervalue.

These issues and the legal intricacies they involve are considered in more detail in an article that the New Law Journal has recently published: An Untidy Arrangement?  You can access this online using this link.

Flawed ministerial review

In February 2013 the Right Honourable Stephen Hammond MP published the Department for Transport’s review of its arrangements with the MIB for victims of uninsured and untraced drivers.  One of his proposals for victims of untraced drivers was that children and protected parties (i.e. the mentally incapacitated) should have their settlements approved by an independent arbitrator but only where they are not legally represented, see Question 5 of the Consultation Paper. 

What the Dunhill case illustrates, so vividly, is the importance of the triple safeguards conferred under the Civil Procedure Rules.  These do not apply to untraced driver claims as they are not court proceedings. 

 

To deny an independent appraisal as to the adequacy of a compromise or the sufficiency of a settlement where lawyers are involved, as the Minister proposes, is to risk a similar disaster to that which nearly happened in Dunhill.  This is especially true under 2003 Agreement where the fixed scale of legal fees is only sufficient to fund legal representation in the simplest of cases.  Meanwhile, under the current unrevised scheme, claims are still being settled (i) without any legal representation and (ii) without any opportunity for an independent assessment by a suitably qualified arbitrator, except on appeal. 

Similarly, to restrict the arbitrator’s independent assessment to cases where there has been no independent legal representation means that the arbitrator’s decision will almost inevitably be subject to a degree of bias. This is because the arbitrator’s decisions will be based on the one sided evidence of the MIB carefully chosen experts as well as its own representations.  The danger here is that this presents no adequate opportunity to test or challenge the veracity of that evidence through forensic examination. 

The Minister’s proposal also ignores a ‘Catch 22’ conundrum presented by an unrepresented child or mentally handicapped individual:  how can someone, whom the law deems incapable of the level of understanding necessary to equip them to conduct their own case, possibly be expected to know when to challenge the MIB’s appointed expert’s opinions or its views on apportionment of liability or even the value the MIB has put on the claim, still less how to go about articulating their case or appealing a decision? 

The Minister has been informed of these shortcomings.  Unfortunately, so far, he has declined to indicate whether he is willing to improve the compensatory safeguards for children and the mentally handicapped under the 2003 Agreement.   It is over a year since he announced his review and still we have had no indication of the Minister’s intentions or when he plans to implement them.

Call for action

If you agree that injured children and mentally handicapped victims of untraced drivers deserve better protection under the 2003 Agreement then I would be very grateful it you would contact me to discuss how best to increase press and public awareness on this issue to persuade the Minister of the need for urgent reform.

Nicholas Bevan

Solicitor, Legal Services Consultant, Mediator, Legal Trainer

mail@nicholasbevan.com

Office  01823 325365

Mobile 07968 427134

Web    nicholasbevan.com

33 Queen Street, Taunton, Somerset, TA1 3AX

NLJ FIRST TO COMMENT ON DUNHILL

Dunhill v Burgin [2014] UKSC 18

To see the full article go to: http://www.newlawjournal.co.uk/nlj/content/justices-rescind-order , posted on the NLJ website on 19 March 2014.

To read my NLJ article explaining its significance, go to: http://www.newlawjournal.co.uk/nlj/content/untidy-arrangement

WIDER IMPLICATIONS OF DUNHILL

Dunhill v Burgin [2014] UKSC 18

(See the post below for a more detailed consideration of the case itself)

The Dunhill ruling is important for three reasons.  Firstly it provides clarification on the correct test for determining mental capacity.  Secondly it confirms that if a claim is settled or compromised in ignorance of the fact that one of the parties lacks the requisite capacity and the parties agree what ostensibly appears to be a binding agreement, that can be set aside and the claim reopened, notwithstanding the common law rule in Imperial Loan Co Ltd v Stone [1892] 1 QB 599.  In doing so, Dunhill demonstrates the ability of the Civil Procedure Rules to amend the substantive common law rules that determine the ability of an agent to conclude a binding agreement on behalf of someone lacking the requisite capacity.  (see my earlier post).

A third significance: lack of protection for victims of untraced drivers

The ruling in Dunhill is also important in the contrasting standard it sets.  The standard of protection extended to children and protected parties under the Civil Procedure Rules, that lie at the heart of that case, do not extend to victims of untraced drivers under the Untraced Drivers Agreement 2003. These are non contentious claims for compensation to the MIB.  The lack of suitable safeguards under the 2003 scheme is an anomaly that requires urgent revision, as is explained in An Untidy Arrangement? published in this week's edition of the New Law Journal.

Further flaws identified in the MIB Agreements

The Dunhill judgment is also helpful for the interesting obiter discussion on whether, under our common law, an agent has authority to effect a binding contract on behalf of a mentally incapacitated principle; apparently not.  That being the case, it would appear that both cl. 3 of the Uninsured Drivers Agreement 1999 and cl. 2 of the Untraced Drivers Agreement 2003 appear to be unlawful.

These clauses in the Motor Insurance Bureau's Agreements provide that the actions of an applicant / claimant’s representative have a binding effect whether made on behalf of a child or mentally incapacitated individual - as though they were adults of unsound mind.  Put at its simplest, neither the Secretary of State nor the MIB possess the constitutional power that would entitle them to prescribe new common law principles.  Accordingly and in so far as these clauses appear to do just that, they are ultra vires.

In this respect, successive ministers at the DfT have behaved as though they have special powers.  [See for example the way the 1999 MIB Agreement prescribes what inferences are to be drawn from certain facts in clause 6.3; also ultra vires, I think.]

A ministry in a muddle

Howlers like this (and there are plenty to be found within both MIB Agreements - see my Call for Reform blog from 16 April 2013) are the inevitable consequence of the DfT's misguided practice that places such a high degree of trust (reliance even) on the MIB and the ABI  for the legal advice it receives and in the articulation of its policy and rules concerning the legal entitlement of victims of motor accidents to a compensatory guarantee. The MIB is owned and operated by all the major UK based motor insurance companies that underwrite motor insurance in the UK.

The DfT could have employed highly qualified (independent) Parliamentary draftsmen to prepare a short and simple codified scheme using clear and easily accessible language; it chose not to and one wonders why.  Instead the DfT effectively waived through the MIB's very unfair and partial proposals - without proper consultation.  The agreements produced by this method are lengthy, turgid, and in places self contradictory, with the result they are confusing and lack legal certainty.  They are also replete with infringements of Community law.

Conflict of interest

The Uninsured Drivers Agreement 1999 and the Untraced Drivers Agreement 2003 are eloquent in one respect however:  as a testimony to the folly of permitting a non governmental body with a vested interest in the outcome to exercise such sway in a government department's policy and rule making. There is a simple reason why both MIB Agreements look and read remarkably like a badly drafted insurance policy; one that has a strong insurer bias at the expense of the victims it is supposed to protect.  The explanation has everything to do with the controlling hand that drafted them. My critique, not just of the MIB Agreements but also of our national law provision in this area generally is freely available on the New Law Journal’s website, see: On The Right Road?.

It is a Minister’s prerogative, and dare I say it his duty, to dictate what his Department’s policy and rules should be.  Ministers should ensure that what they do is always in the public’s best interest; not just that of the powerful insurance lobby.  How then can the DfT ensure this if it permits an organ of the insurance industry to draft its national law provision, especially where there is such an obvious conflict of interest?

Conflict of laws

Legal practitioners need to understand that our national law provision for victims of uninsured and untraced drivers is out of step with the minimum standards of protection required under superior Community law. This is the central theme of my four articles: On The Right Road?. It is regrettable that a number of recent cases have revealed that it is not only the DfT that appears not to understand the significance of the primacy of Community law in this area, it is a failing that extends to many legal practitioners and even some judges as well.

Advanced level training

On the bright side, bad law can sometimes be good business for lawyers.  I plan to offer advanced level training through the Association of Personal Injury Lawyers to equip the legal eagles amongst us with the requisite know-how to identify the many opportunities that exist to present a successful legal challenge of national law provision in this area.

Asleep at the wheel

It will be recalled that the DfT announced its review of the MIB Agreements in late February last year within just over four weeks of what some have dubbed 'Jackson day'. It published its proposals for reforming both MIB Agreements in a consultation paper (the fruit of three years detailed discussions with the MIB, apparently). To be fair, most of the proposals were beneficial but they were limited in scope. Take for example the recommendation in Question 5 of the Consultation Paper that an independent arbitrator be appointed to approve settlements on behalf of minors and protected parties - this is restricted to untraced driver claims only and then only where the applicant has no legal representation at all. The Dunhill case provides ample proof why that proposal is inadequate. The risk of junior legal representatives being assigned to handle untraced driver claims (in a non contentious area of business that does not insist on professionally trained advisers made all the more likely by the nugatory fixed fees permitted under the scheme) and of their failing to recognise the true value of a claim - is all too real. Furthermore the risk that an inexperienced arbitrator will be presented with inadequate (or worse yet, partial or incomplete) expert evidence is also a distinct prospect.  Vulnerable victims require safeguards, not only against themselves and the their lawyers but also against inadvertent bias in the investigation of the claim by the MIB itself - that is why the CPR insists upon not one but three separate measures (see below under Wake Up Call).

Taken as a whole, the DfT's review failed to redress the many substantive law defects in our national law provision in this area. This was explained to the Minister. The DfT was asked to widen the scope of its review (see my earlier blog in the point) to cure the many defects that were identified and explained.  The Minister was also invited to participate in a constructive dialogue by several parties.  These requests were met with a stony silence.

The DfT's consultation ended in April 2013 and we were told that the Minister would publish a report with his final proposals in July 2013.

We are nearly one year on from the end of the consultation and the Minister's much delayed report is still awaited.  Meanwhile, the victims of uninsured and untraced drivers continue to be exposed to the injustices perpetrated under both MIB Agreements.

Infringement

Whilst the DfT have been able to block the involvement of the Law Commission, see my earlier post, it is likely to find the European Commission far less accommodating.

A formal infringement complaint was filed at the European Commission by myself in August 2013.  The case against the United Kingdom has passed the initial vetting process and the prima facie case is now established.  The complaint is being investigated under the EU Pilot Scheme. More news about that anon.....

Wake up call

The Dunhill case serves as a useful cautionary tale. It illustrates just what can happen when vulnerable parties (whether children or the mentally incapacitated) are not properly protected under our law.  The triple safeguards deemed necessary (as Dunhill demonstrates) under the Civil Procedure Rules : (i) appointment of litigation friend, and (ii) independent legal advice and (iii) court approval of settlements - should be extended by operation of the law to victims of uninsured and untraced drivers; it isn't at present. 

I have written to the DfT to ask them what action they intend to take.  I am not expecting a reply any time soon.

SUPREME COURT SETS ASIDE CONSENT ORDER

Dunhill vBurgin [2014] UKSC 18

The Undersettlement

The Supreme Court has set aside a settlement of a personal injury claim by a woman who was knocked down and injured by a driver.  The Claimant was represented by a barrister and a trainee solicitor at court when her claim was settled in 2003 for £12,500.  Unfortunately no one realised that the Claimant lacked the mental capacity to conduct her claim.  Furthermore, her advisers did not appreciate certain factors that made the claim potentially a lot more valuable.  As it was, the terms of compromise were set out in a consent order signed by both parties’ counsel.

Later she consulted new solicitors who saw things very differently.  They realised that this was not a straight forward claim and, more to the point, they assessed quantum at a very different order of magnitude: of up to £2 million.  

In 2006 the new solicitors applied to set aside the consent order on the ground that (i) at the time the settlement was agreed, the Claimant had lacked sufficient mental capacity to conduct her claim so that she should have been a protected party, and (ii) the settlement was invalid because, being a protected party, the consent order agreed on her behalf required court approval under CPR Rule 21 for it to be valid. 

Civil Procedure Rules r21.10

CPR 'Rule (1) Where a claim is made –(a) by or on behalf of a child or protected party; or(b) against a child or protected party,no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.'

Decisions of the lower courts

The Defendant succeeded initially before Mr Justice Silber who held that the Claimant’s capacity was to be judged by reference to the (less complicated) decisions that she was actually required to take in the action as formulated by the original solicitors.  He found that as the Claimant could not rebut the presumption that she had that capacity, she was not a protected party.  The Claimant’s appeal to Silber J in the High Court succeeded and the Defendant appealed that decision.

When the matter was considered by the Court of Appeal, Lord Justice Ward held that the Claimant’s capacity was not to be assessed in the light of what was required of her in 2003, as presented by her lawyers but by taking into account her ability to comprehend and to conduct the proceedings as they should have been framed.  The case was then remitted back to the High Court but, given the important issues involved, the case was leapfrogged to the Supreme Court.

The SC Ruling

In the Supreme Court Lady Hale upheld the Court of Appeal’s approach.  She held that the correct test was to ask whether the Claimant had been able to conduct the claim or cause of action that she actually had, as distinct to the case as understood or pleaded by her lawyers. 

Applying this standard, she found that the Claimant had lacked the requisite capacity to conduct her case at the time her claim was settled.  She should have had a litigation friend appointed.  As the consent order had not been approved by the court under CPR Rule 2, it was invalid and should be set aside.

In delivering her judgment Lady Hale stated:

‘….the policy underlying the Civil Procedure Rules is clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers. …[Approving an earlier commentary on a previous version of the relevant rules[1]]…. the objects of the compromise rule was "to protect minors and patients from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth", a sentiment which has been carried forward into the current edition of Civil Procedure.’

The consent order being rescinded, she remitted the case back for a trial.

Implications

I will comment on the wider implications flowing from this decision separately.  Suffice it to say that the key point to take away from this ruling is that the CPR 21 applies whenever a party lacks mental capacity to conduct a claim; regardless of whether a party’s lack of capacity is known to anyone.

Court approval of settlements on behalf of children and protected parties is an absolute requirement: one that is imposed as a condition precedent to its validity.  It applies to all actions governed by the CPR, not just personal injury claims. 

Whilst is relatively easy to discern whether a client is a child, it is not always so obvious to discern that they have cognitive or other mental incapacity, particularly in the case of the elderly or where a claimant appears to be merely mildly eccentric or forgetful and disorganised; the mental capacity test is a fact specific one.  This presents legal practitioners, and in particular defendants, with something of a risk management issue.  They should incept appropriate measures to ensure where a party lacks the requisite mental capacity that it is spotted: in appropriate cases this may involve obtaining an expert medical opinion.  It is already best practice to routinely address the issue of mental capacity when instructing medical experts where there has been a head injury.

---

[1] The words in the square brackets are the author’s.

DfT BLOCKS LAW COMMISSION'S INVOLVEMENT

In August 2013 the Law Commission approached me to ask me to submit my proposals for reforming the United Kingdom's provision for ensuring that victims of motor accidents receive their full compensatory entitlement. I was informed that they decided to contact me after reading my four-part feature On the Right Road?, which was published in the New Law Journal in February 2013.  All very flattering!

I duly submitted a detailed paper in October 2013 in which I set out precisely what was wrong with the Road Traffic Act 1988, the European Community Rights Against Insurance Regulations 2002, the Uninsured Drivers Agreement 1999 and the Untraced Drivers Agreement 2003.  All of these national law provisions contain elements that are unlawful in that they conflict with superior Community law provision.  I explained how the original legislative objective within the Road Traffic Act 1930 had been steadily eroded, how our current national law provision fails to meet the minimum standards of protection required under European Law, which coincidentally is similar to the original 1930 concept that had the protection of victims as its overriding concern. I also explained how some recent Court of Appeal rulings had compounded the problem by failing to interpret our national law consistently with the Motor Insurance Directives and the Court of Justice of the European Union.

A long silence ensued.

Last week I received a polite 'Dear John' letter from the Law Commission indicating that it cannot become involved in reviewing this area of the law without the support of the Department for Transport.  In other words, although they would like to include reform in this area in their 12th Programme, this has been blocked by the Minister, as is his prerogative.

I ask, as Marcus T Cicero might have done: cui bono?  Surely it is the motor insurance industry that benefits most from obstructing reform in this area.  According to the Minister's statement of intent, he has been in detailed discussions with for nearly four years now, still with no tangible result.

SAFEGUARDING THE RIGHTS OF CHILDREN AND THE MENTALLY HANDICAPPED

Every year hundreds of children and mentally handicapped victims are injured by hit and run drivers on our roads. Unfortunately their compensatory entitlement is jeopardized by the Department for Transport’s outsourcing arrangement with the Motor Insurers Bureau under the Untraced Drivers Agreement 2003.

Those wonderful people at the New Law Journal have published my detailed critique of the current regime. The article considers the relevant case law and calls for urgent reform to improve the compensatory safeguards for children and the mentally handicapped under the 2003 Agreement.

My article can be accessed online, free of charge, by registering for a free six month trial of the online edition: click here.  

View the online edition of the New Law Journal

ALLOCATION OF LIABILITY FOR HEAD ON COLLISIONS

In Gray v Gibson [2014] All ER (D) 35 (Mar) the Court of Appeal overruled a first instance decision which found the claimant 40% contributory negligent for a head on collision between her car and a lorry that had veered over to her side of the road. 

The accident happened on a road with one lane in either direction.  The vehicles were travelling in opposite directions.  The judge found that the lorry driver had allowed his vehicle to cross over onto the claimant’side by more than two feet as her car approached.  She had been travelling at 30 mph. 

The Court of Appeal ruled that the DJ had been wrong to adopt a starting position that assumed that both parties were equally to blame for the accident.  The correct approach was first to determine whether the defendant was liable and only then to consider whether the claimant was also negligent. 

The extempore judgment spares the usual homily about the Court of Appeal only rarely interfering with a first instance apportionment of liability under s1 Law Reform (Contributory Negligence) Act 1945 – since, these days, this seems to be honoured more in the breach.  As it was, the Court held that the claimant’s speed was not causative: what caused the accident was the defendant’s carelessness in crossing onto the claimant’s side of the road.  She could not be blamed for failing to anticipate his negligence by driving slower. 

The defendant was fully liable.

For another recent case along these lines see: Bennett v Southwell [2013] EWHC 2382 (QB).

HUMAN RIGHTS ACT PLUGS GAP IN TORT LAW

Police liable to victims of serial rapist

Perhaps one reason why many of us are not well served by our local police force may have something to do with the arcane policy that holds that the police are not subject to a duty of care in their investigation of crimes, see for example: Smith v Chief Constable of Sussex [2009] 1 AC 225.  This is surely a disincentive to greater diligence and effort in these matters and it probably accounts for that special brand of insouciant complacency peculiar to certain police officers.  

However they may like to dress up their role and their constitutional relationship to the Crown and perhaps more importantly, to the tax-paying public (who pay their wages, in what is supposed to be a representative democracy) the Police are de facto public servants: no more and no less.  As such the Police should be held accountable for gross neglects of duty,  especially where they result in reasonably foreseeable consequences of such dire gravity - to the very people whom they are supposed to protect.

In  DSD and another v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) Mr Justice Green ruled that article 3 of the Human Rights Act 1998 entitled claimants who were raped and assaulted by the odious ‘black cab rapist’ Mr Warboys to compensation  because the Police's incompetent investigation over many years had infringed their article 3 rights.  This judgment exposes the deficiencies in a tort law system that would otherwise have denied over 100 victims any compensatory redress either from the Police (on policy grounds) or from the perpetrator's motor insurers, as to which see: AXN & Ors v Worboys & Ors [2012] EWHC 1730 (QB).  Article 3, prohibits torture or inhuman or degrading treatment or punishment and it has repeatedly been held to enshrine one of the most fundamental values of any democratic society. 

It is deplorable then that Theresa May appears to have committed the Conservative party to abolishing the Human Rights Act if they are re-elected.  O tempora, o mores!

See: MoD loses its ability to hide its neglect, in which I comment on a Supreme Court HRA ruling that plugged another gap in the protection afforded under under our domestic law  Smith & Ors v Ministry of Defence [2013] UKSC 41 

CPR RULES APPLY TO FOREIGN ACCIDENT CLAIMS

As is well known, Rome II governs the applicable law where an accident occurs abroad from 1^st January 2009.  Whilst article 15 (c) extends the scope of the applicable foreign law to issues concerning the existence, nature and assessment of damages or the remedy claimed, article 1.3 excludes this from matters of evidence and procedure; without prejudice, of course, subject to certain exceptions that do not concern us here. 

 Wall v Mutuelle de Poitiers Assurances [2014] EWCACiv 138 is important to anyone who handles personal injury claims featuring an accident abroad.  It concerned a foreign insurer that sought to impose the French approach to quantifying Steven Wall’s catastrophic injury claim, because the accident took place in France. Clearly the basic applicable law was that of France.  The French insurers want to appoint a single expert consistent with the continental model of inquisitional investigation.  They failed.

Given that there were 1.5 million road accident injuries in the EEA in 2009-2010, and that economic migration within the EEA seems likely to increase, it seem reasonable to suppose that foreign accident claims are likely to become a more common feature of personal injury practice.  So anything that makes the process of running such a claim a little easier is to be welcomed.  Robert Weir’s success in this appeal achieves just that.  Wall simplifies some of the procedural aspects of accidents that occur in a foreign jurisdiction where Rome II stipulates that foreign law applies, especially those concerning the quantification of loss.  

In essence the Court of Appeal concluded in Wall that it would be impractical to expect an English judge to apply foreign procedural rules, evidential standards and protocols when attempting to quantify the loss of a UK resident injured abroad.  Paragraphs 12 to 14 of the Longmore LJ's judgment indicate some of the difficulties that would result if otherwise.

Accordingly in  England and Wales the courts will follow the evidential practices prescribed by the Civil Procedural Rules.   So CPR Part 35, which we love and hate in equal measure, will govern the expert evidence required to quantify the loss, in so far as each head of loss claimed is recoverable under the foreign law.  The ruling has echoes of the pre-Rome II ratio in  Harding v Wealands [2007]  AC 1 but there are subtle differences. Furthermore, anyone hoping to secure a periodical payments order against a foreign insurer is likely to be disappointed

I reported the first instance decision last month because its importance appeared to have escaped the notice of most commentators; it still has.  So I am glad to report that the original decision has been upheld. 

MoJ VICARIOUSLY LIABLE FOR PRISONER

In Cox v Ministry ofJustice [2014] EWCA Civ 132 Robert Weir QC has set a new precedent in the obscure world of vicarious liablity.  The Cox judgment also clarifies the correct approach to take when applying the newly articulated criteria for deciding whether vicarious liability is appropriate.  This was devised by the Supreme Court in Various Claimants v Catholic Child Welfare Society & ors. [2012] UKSC 56 , as to which see in particular paragraphs 34 to 36 of Phillips LJ’s seminal judgment in that case.

The Cox case featured a catering officer who was injured by a prisoner’s mishap.  The prisoner was one of a number in her charge that had been tasked with carrying 25kg sacks of rice upstairs.  One of the sacks split and its contents spilled over the steps, creating a predicable slipping hazard.  She told the prisoners to stop and wait until the mess had been cleaned up but one prisoner thought he knew better.  He carried on regardless, slipped and dropped his load on the catering officer, injuring her in the process. 

The case leveled against the MoJ was that it was liable (i) directly, in negligence, and also (ii) vicariously (without regard to fault) for the prisoner’s negligence.  Both claims were dismissed by HHJ Keyser QC.  However, the Court of Appeal upheld Mr Weir’s appeal on the vicarious liability finding.

McCombe LJ’s leading judgment in Cox serves as a useful companion to Phillips LJ’s seminal judgment in the Catholic Child Welfare case and it is a 'must read' for practitioners seeking to navigate the treacherous and incompletely chartered waters around this area of the law.  Vicarious liability is a concept that still eludes a completely watertight definition.  It has been aptly described as ‘a loss distribution device based on grounds of social and economic policy’ by Millet LJ in Dubai Aluminium Co. Ltd v Salam and Ors [2002] UKHL 48. (Similar phraseaology was used by the same judge in the landmark sexual abuse ruling in Lister v Hesley Hall Ltd 2001 UKHL.)  Another eminent jurist, Lord Pearce, has described it as a doctrine; one that ‘has not grown from any very clear, logical or legal principle but from social convenience and rough justice.’ see ICI v Shatwell 1965 AC 656. 

Whatever its precise classification (policy, doctrine or concept), vicarious liability is perhaps best understood by what it does.  It operates to fix a completely innocent third party with responsibility for someone else’s tortious (sometimes criminal) wrong; hence the ‘rough justice’ epithet.  As a bold exception to conventional tort law rules, it is used sparingly and with circumspection: it is not a ‘cure all’ for every hard luck case.  It is deployed where the justice of the situation make it expedient and in keeping with judge made criteria. 

The range of situations deemed appropriate for a finding of vicarious liability has widened considerably over the past few years.  The courts have taken giant strides in extending its remit in keeping with modern expectations and social change.  Whilst it is clearly no longer the case that it is confined to the relationship of 'master and servant', it still seems to have retained at least one foot on terra cognita– with phrases such as ‘akin to employment’ still being in regularly used in many judicial explications. 

Although the scope of vicarious liability has been extended to encompass a nightclub owner for a gratuitously vicious bouncer, the Police for a homophobic officer, priests for the abuse of children (even against a non-parishioner who had no connection with the church or its youth group), for abuse by nuns and wardens, commercial subsidiaries, an unincorporated association for a bellicose sportsman, between partners in a law firm for a fraud, the dual liability of two subcontractors; yet it is still circumscribed by the need to establish a special relationship between the torfeasor and the unwitting third party.

Establishing new precedent for vicarious liability scenarios will always be a matter of fine judgment; its exercise attracts a correspondingly high litigation risk.  This is well illustrated by the first instance decision in Cox, in which the trial judge undertook a careful and painstaking review of all the correct authorities but which nevertheless arrived at a different outcome.  The deciding factor in the Cox appeal was not the degree of control exercised over the perpetrator by the Prison Service, nor whether the prisoners’ were voluntarily contracted or properly paid but, to paraphrase yet another part of the judgment, whether the wrongful act was ‘so much part of the work, ‘business’, or organisation of the person or entity who it is said should be vicariously liable that it is just to make the latter answer for the negligence of the former’[1].

There are clear echoes of Caparo Insustries plc v Dickman [1990] UKHL 2 (whose three stage test is used to establish a whether a duty of care exists in an unusual case where no obvious precedent exists) in the two stage test promulgated by Lord Phillips in the Catholic Child Welfare case.

The judgment in Cox is of particular interest in the way it applies the Catholic Child Welfare criteria to a new vicarious liability scenario, see paragraphs 42 to 47 of McCombe LJ’s judgment, and it is to be welcomed for the valuable new precedent it has set. 

Further training

I am running an in-house half-day workshop law firms on vicarious liability.  It covers all the theory and practice, including the latest developments and new thinking.  It then cements the learning by applying the theory in practice through realistic (and hopefully fun) workshop sessions based on decided cases.

For further details please contact me on:

mail@nicholasbevan.com

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[1] See paragraph 64 in Cox v MoJ 2014 EWCA Civ 132.