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PERSONAL INJURY & EMPLOYER’S LIABILITY
Several liability of employers for negligent exposure to asbestos
Barker v Corus (UK) Plc, HL (Lord Hoffman, Lord Scott of Foscoite, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond) 3/5/2006; Times, May 4, 2006
Where employers were liable on the basis that they had negligently exposed an employee to asbestos and thereby created a material risk of mesothelioma which had eventuated, it would be fair that they should be severally liable only to the extent of the share of the risk created by their breach of duty.
Manual Handling Operations Regulations 1992 reg.4
Smith v S Notaro Ltd & Anr, CA (Civ Div) 5/5/2006
Whilst the judge had been right to hold that an employer had breached the Manual Handling Operations Regulations 1992 reg.4 as it had not given an employee training on how to carry heavy loads over uneven surfaces, the apportionment of damages had not represented the justice of the case as it was the owner of the building site where the accident occurred who was responsible for the unsafe walkway.
Failure to establish causation
Blackburn Rovers Football & Athletic Club v Avon Insurance Plc & Ors, High Ct, 12/4/2006
A football club failed to show that the injury sustained by one of its players in training had solely and independently of any other cause occasioned the player's permanent total disablement.
Social Security (Prescribed Diseases) Regulations 1985
Westgate v Secretary of State for Work & Pensions, CA (Civ Div) 5/4/2006
For the purposes of the Social Security (Prescribed Diseases) Regulations 1985 Sch.1 para 1 A11(c) a "metal working tool" was a tool that worked metal and was not a tool that worked with metal.
HEALTH & SAFETY AT WORK
Health and Safety at Work etc. Act 1974
R v H, CA (Crim Div) 22/5/2006
A defendant to a charge under the Health and Safety at Work etc. Act 1974 s.2, s.3 or s.4, in asking the jury to consider whether it had established that it had done all that was reasonably practicable, could not be prevented from adducing evidence in support of its case that it had taken all reasonable steps to eliminate the likelihood of the relevant risk eventuating.
CLINICAL NEGLIGENCE
Breach of duty established, but causation not established on the evidence
Anderson v Milton Keynes NHS Trust & Anr, High Ct, 11/5/2006
Although a hospital had been in breach of duty by not communicating to surgeons performing an operation the results of laboratory tests showing the presence of bacteria in a patient's existing surgical wound, and in not administering appropriate antibiotics to combat those bacteria, the hospital was not liable to the patient for his eventual continuing disability as, on a substantial balance of probabilities, the bacteria would have been immune to attack by that time.
NHSLA – Reasonable security and continuity of periodical payments
YM v Gloucester Hospitals NHS Foundation Trust & Anr, High Ct, 12/4/2006
The continuity of periodical payments for future pecuniary loss in respect of personal injury caused by clinical negligence was reasonably secure, under the Damages Act 1996 s.2(3), as a result of arrangements made between the NHS Litigation Authority, the parties and the secretary of state. The arrangements ensured that the NHSLA was the effective source of payments under the periodical payments orders and that the orders could be directly enforced against the NHSLA if necessary.
NEGLIGENCE
Effect of Human Rights Act 1998 and ECHR 1950 Art 8 and the principle in JD v East Berkshire Community NHS Trust (2005) UKHL 23, (2005) 2 AC 373
L v Pembrokeshire CC, High Ct, 11/5/2006
The policy consideration underlying the principle in JD v East Berkshire Community NHS Trust (2005) UKHL 23 , (2005) 2 AC 373, that doctors or social workers who failed to exercise reasonable care and skill in erroneously concluding that a child was at risk of abuse from one or both of its parents were not liable in negligence to the parents of the child, was not rendered invalid or otherwise inapplicable by the fact that, after the coming into force of the Human Rights Act 1998, such a parent might have a claim under the European Convention on Human Rights 1950 Art.8.
Landowners’ duty of care to road users in respect of trees abutting highway
Poll v Viscount Asquith of Morley v Viscountess Asquith of Morley, High Ct, 11/5/2006
Landowners who owed a duty of care to road users in respect of their trees that abutted the highway were found to be in breach of that duty where a tree had fallen into the road as a result of a combination of a visible structural defect and a concealed fungal defect. Their forestry inspector had not been suitably qualified to be deemed a competent inspector, and if a competent inspector had carried out a reasonable and proper examination on the tree, the fungal defect would, on the balance of probabilities, have been detected.
Limitation Act 1980, s.14A
3M United Kingdom Plc & Anr v Linklaters & Paines (A Firm) CA (Civ Div) 3/5/2006
Tenants had failed to bring proceedings against their solicitors for negligence within three years of the date when they knew or ought to have known for the purposes of the Limitation Act 1980 s.14A that an assignment of a lease had caused the loss of the break clause in it, which was personal to the original tenant, and that the damage attributable to that loss had occurred as a result of the acts and omissions of the solicitors.
PSYCHIATRIC INJURY
Damages arising from intentional sexual assault – Non-extendable 6 year limitation
A v Hoare, CA (Civ Div) 12/4/2006
The Court of Appeal was bound by the decision of the House of Lords in Stubbings v Webb (1993) AC 498 to hold that although most claims for damages for physical or psychiatric injury now had an extendable three-year limitation period from the date of the claimant's knowledge, claims for damages arising out of an intentional sexual assault had a non-extendable six-year limitation period from the date of the assault.
Claims struck out as bound to fail on grounds of causation and remoteness
French & Ors v Chief Constable of Sussex, CA (Civ Div) 28/3/2006
Claims by police officers for psychiatric injuries allegedly suffered as a result of a fatal shooting, which they had not witnessed, and which had led to criminal and disciplinary proceedings against them that had led to stress and the injuries complained of, were struck out on the basis that they were bound to fail on grounds of causation and remoteness.
HEALTHCARE
Withdrawal of life-saving treatment from child with severe neuromuscular disorder
Re K (A Child) High Ct (Fam Div) 9/5/2006
The withdrawal of life-prolonging treatment was in the best interests of a five-month-old child with a severe neuromuscular disorder who was experiencing a pitiful existence in hospital.
Health & PCT policy refusing funding for treatment with an unlicensed drug
R v Swindon NHS PCT & Anr, CA (Civ Div) 12/4/2006
The policy of a primary care trust to refuse funding for treatment with an unlicensed drug save where exceptional personal or clinical circumstances could be shown was irrational, as the policy could not be rationally explained.
CONSUMER PROTECTION
Consumer Protection Act 1987
Tesco Stores Ltd & Anr v Pollard & Anr, CA (Civ Div) 12/4/2006
The test as to whether a product had a defect under the Consumer Protection Act 1987 was what persons generally were entitled to expect. In the instant case a consumer was generally entitled to expect that a bottle of dishwasher powder that had a child resistant closure cap would be more difficult to open than if it had an ordinary screw top, and since the bottle was more difficult to open than an ordinary screw top there was no breach of the 1987 Act.
DAMAGES
Assessment of future loss of earnings claim
Woolley v Essex CC, CA (Civ Div) 17/5/2006
Where a judge was assessing an award for future loss of earnings in a personal injury claim, and it was clear that an expert who was instructed to give details of wage levels in the claimant's profession had made an inadvertent mistake in his conclusion, it was incumbent upon the judge to analyse the report and to assess whether the expert had reached the correct conclusion.
Assessment of loss of pension rights
Brown v MOD, CA (Civ Div) 10/5/2006
The county court judge had failed to apply the correct principles when assessing the claimant's entitlement to damages for loss of pension rights and accordingly a fresh assessment was required.
Recalculation of damages for breach of professional duty
Whiteleys (A Firm) v Trafalgar Consultancy Ltd, CA (Civ Div) 5/5/2006
An award of damages for breach of professional duty was recalculated to put the victim of the breach in the position that it would have been in if the breach had not occurred.
Exceptional case of recovering costs as part of damages awarded
Corbett v Bond Pearce (A Firm) High Ct (Ch D) 28/4/2006
It would only be in an exceptional case that costs, ordered to be paid by the claimant to the defendant in the course of a negligence claim by the former against the latter, could be recovered by the claimant from the defendant as part of the damages awarded to the claimant against the defendant in the same claim.
Damages for breach of contract and misuse of confidential information
Shepherds Investments Ltd & Anr v Walters & Ors, High Ct (Ch D) 12/4/2006
The former directors of the claimant investment companies were in breach of their fiduciary duties and in breach of their obligation of loyalty by virtue of the steps they had taken prior to their resignation to promote the establishment of a competing business.
Damages, consent and liability in the context of a road traffic accident claim
McMinn v McMinn & Anr, High Ct, 11/4/2006
Insurers had been entitled to repudiate liability to indemnify the uninsured driver of a vehicle for damages that the driver might be ordered to pay to the injured passenger since the liability was an excluded liability because the passenger had reason to believe that the vehicle had been unlawfully taken within the meaning of the Road Traffic Act 1988 s.151(4).
CIVIL EVIDENCE
Failure to consider issue of Claimant’s credibility
Yaqoob & Anr v Royal Insurance (UK) Ltd, CA (Civ Div) 25/5/2006
A trial judge's failure to deal with issues of a claimant's credibility had vitiated the judge's decision that the claimant had proved on the balance of probabilities that a fire that damaged his business premises was not set by him or at his connivance.
Evidence (proceedings in Other Jurisdictions) Act 1975
Smith v Phillip Morris Companies Inc & Ors, High Ct, 27/4/2006
An order under the Evidence (Proceedings in Other Jurisdictions) Act 1975 for oral examination of a non-party to proceedings in the United States of America was set aside where the letter of request seeking the order was couched in such wide terms that it amounted to an impermissible investigation and the letter of request could not properly be modified or made subject to conditions.
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