PIBULJ
Wilson v GP Haden Trading as Clyne Farm Centre [2013] EWHC 1211 (Swift J, QBD) - Geoffrey Weddell, 1 Chancery Lane
30/06/13. On 1st August 2009 the claimant, who is a scout leader, was leading a troop of scouts over a series of obstacles on an adventure course at the defendant’s premises. One of the obstacles was a so-called Burma bridge which involved crossing a rope bridge at a height of some 3 metres and then sliding down a fireman’s pole to ground level. The claimant failed to grip the pole properly and slid down it at high speed. He struck the ground with great force, causing injury to his spine.
He brought proceedings for damages for personal injuries against the operators of the site, alleging a failure to give appropriate instruction and supervision and a lack of impact attenuation. The claim was tried by Swift J who found for the claimant.
The case is interesting for two reasons. Firstly, and unusually, it was not in issue that the defendant owed the claimant a duty to provide him with appropriate instruction and supervision. Most claims against providers of adventure activities fail because the claimant is unable to establish the existence of that duty. For example, in Trustees of the Portsmouth Youth Activities Committee (a charity) v Poppleton [2009] PIQR 1, the Court of Appeal held that in general no duty was owed by the providers of adventure equipment to persons of full age who chose to make use of equipment that they knew carried some risk of injury. The claimant was a young man who had leapt from a climbing wall at the defendant’s premises in order to reach an overhanging projection. He missed his target and fell to the matting below, where he suffered injuries that rendered him tetraplegic. The Court of Appeal dismissed his claim on the footing that the operators of the climbing facility did not owe him any duty to supervise or instruct him.
In the case of Wilson however, the operators of the site had stated in their promotional material that expert tuition would be provided in the use of the equipment. In the light of that assertion, the defendant did not dispute that it owed the claimant a duty to provide him with the training and supervision that he could expect from a reasonably competent instructor. The issue for the court was whether the training provided met the relevant standard. The court held that it did not.
The second interesting feature of the case was the court’s approach to the defendant’s application for an issue-based costs order. The claim as pleaded had two strands; (1) that the supervision and training provided were not of the relevant standard, and (2) that the impact attenuation material at the base of the fireman’s pole was insufficient. This latter part of the case was the subject of live evidence at trial from experts. The court found that the impact attenuation material was inadequate and that its defective state amounted to a further breach of duty by the defendant. However the judge also found that the claimant had failed to prove that his injuries would have been avoided or lessened if adequate impact attenuation material had been provided. Accordingly the defendant succeeded on the issue of impact attenuation. When the question of costs was argued, the defendant made an application for an issue-based costs order to reflect its partial success.
Both parties had filed up to date estimates of costs for the trial. The judge agreed in principle with the defendant’s submissions that it was entitled to a costs order that would reflect the parties’ relative degrees of success. However rather than stipulate that the claimant was to pay the defendant’s costs relating to the issue of impact attenuation, leaving the figures to be arrived at after what would inevitably be a dispute between law costs draftsmen at a subsequent detailed assessment hearing, the judge used those parts of the costs estimates relating to the experts as a ready reckoner and arrived at a figure of 5% of the overall costs that could fairly be attributed to the issue of impact attenuation. Accordingly the court ordered that the claimant should have 95% of his costs. The attractiveness of that approach is obvious. It saved time and provided certainty. It might be that in time its use is adopted more generally.
Geoffrey Weddell
1 Chancery Lane
Image ©iStockphoto.com/GJS
New Supreme Court Judgment: Alternative Service Outside the Jurisdiction, How Exorbitant Is That? - Clive Freedman QC, Littleton Chambers
28/06/13. Clive Freedman QC of Littleton Chambers together with Tim Penny instructed by PCB Litigation LLP appeared for the successful appellants in an appeal to the Supreme Court in the case of Abela & Ors v Baadarani [2013] UKSC 44. Judgment was handed down on 26 June 2013. The judgment of the Court of Appeal reported at [2012] 1 WLR 1804 has been overturned. The case is of particular note because of an important shift of emphasis away from the traditional approach to service out of the jurisdiction and considerations of national sovereignty and towards a more practical and pragmatic approach.
The case concerns a claim for fraud where service out had taken place on the Defendant’s Lebanese lawyer without provision to that effect in the original order. Among the issues was whether such service could be validated retrospectively and whether, notwithstanding limitation issues, the claim form could be extended so as to permit prospective alternative service on the Defendants’ lawyers in Lebanon and in the UK. The Deputy Judge (Sir Edward Evans-Lombe) held that despite the lack of express provision in the CPR, the court did have the power retrospectively to order alternative service abroad. He also ordered that service on the Lebanese lawyer should be treated as good service and that the extensions of time and order for prospective alternative service on the Defendant’s lawyers should be treated as valid.
Allowing the appeal, the Court of Appeal held that the High Court had been wrong to validate the service retrospectively and to allow extensions of time for the claim form and alternative service thereafter. In the view of the Court of Appeal, the Claimants could have avoided these “retroactive gymnastics” if they had issued the claim form much earlier rather than left it towards the end of the limitation period.
This decision has now been unanimously overturned in the Supreme Court which has ordered the judgment of the High Court to be restored. The leading judgment of Lord Clarke affirmed that CPR rule 6.37(5)(b)(i) is to be construed as conferring the power retrospectively to validate alternative service into the rules governing service abroad. In cases not involving the Hague Service Convention or a bilateral service treaty, the court should simply ask whether, in all the circumstances, there is ‘good reason’ to make the order sought. In answer to this, Lord Clarke found that the Deputy Judge had not erred in principle and was correct in finding good reason that the steps already taken constituted good service. Lord Clarke, with whose speech the other Justices agreed, held that
i. The test under CPR Rule 6.15(2) (that is retrospective validation of alternative steps already taken to serve a claim form by an alternative method) required only ‘good reason’, not the higher ‘exceptional’ or ‘very good reason’ suggested by the Court of Appeal;
ii. It was wrong to require the method of service to be good under local law. If that had been a requirement, then it would not be necessary to make an order about retrospective alternative service: the only requirement was that it did infringe the local law. In any event, there was no basis for the finding of the Court of Appeal that service was contrary to Lebanese law;
iii. Save in exceptional circumstances, delay in the issue of a claim form within the limitation period was irrelevant. The sole focus should be on the reason why the Claim Form cannot be served within the period of its validity.
The Supreme Court therefore found that the Court of Appeal had been wrong to interfere with the decision of the Deputy Judge.
Lord Sumption’s speech focused on the Court of Appeal’s finding that the power to order service out of the jurisdiction by an alternative method is an exorbitant power and must be ‘exercised cautiously…and should be regarded as exceptional’. His opinion (with whom the other Justices agreed) was that past concerns relating to sovereignty were now outweighed by ‘a far greater measure of practical reciprocity’. He highlighted that ‘litigation between residents of different states is a routine incident of modern commercial life’ and a lower threshold could be justified ‘in the interests of the efficient conduct of litigation in an appropriate forum’.
In departing from the strong caution expressed by the Court of Appeal who suggested a high threshold before intervention abroad could be justified, the unanimous ruling of the Supreme Court has signalled a more pragmatic and efficient approach to jurisdiction being taken by the English Court in international disputes. This marks an important development in service out cases generally.
Clive Freedman QC
Littleton Chambers
Image cc David Dixon
June 2013 Contents
 Welcome to the June 2013 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The quiz is designed to meet the CPD requirements of the SRA and provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information |
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| Personal Injury Articles | |
 The Duty to Secure Young Children In Proper Child Restraint Seats - Jonathan Watt-Pringle QC The decision in Williams v. Estate of Dayne Joshua Williams [2013] EWCA Civ 455 has confirmed that the well-known principles in Froom v Butcher [1976] QB 286 apply equally to contribution proceedings against parents who fail to secure their children in appropriate child restraint seats. |
 Extensions of Time in the New (Post-Jackson) World - Robert Vernon, 9 Park Place Chambers The High Court (in the guise of Edwards-Stuart J sitting in the Technology and Construction Court) has recently provided one of the first insights into the approach to be taken by the courts to applications for relief from sanctions in the post-Jackson era. |
 The Last Gasp for Strict Liability? - Colm Nugent, Hardwicke With the Government's amendment to the Enterprise Bill 2013 due to abolish strict liability in employers' claims, it seems that certain Courts were ahead of the pack in seeking to mitigate what [they?] saw as the potentially unfair consequence of construing the Regulations too strictly against quasi-employers. |
 Animals Act 1971, Strict liability and Statutory Defences - Caroline Wood, Sovereign Chambers Leeds County Court considered the application of S 2(2) of the Animals Act and the defences in the case of Preskey v Carl Sutcliffe (1) Emma Sutcliffe (2) LTL 25.3.2013, Document no. AC0136. |
 Keith Barker v. Lancashire County Council [2013] EWCA Civ 582 - Daniel Tobin, 12 King's Bench Walk At approximately 5.30pm on 29th October 2007 the Claimant ('C') tripped and fell on a raised cobblestone in the surrounding area of a tree pit in Henderson Street, Preston. The Defendant ('D') was the relevant highway authority for the purposes of the Highways Act 1980. |
 Editorial: The Scope and Interpretation of Part 18 - Aidan Ellis, Temple Garden Chambers Part 18 is one of the shortest Parts of the Civil Procedure Rules. Rule 18(1) simply provides that at any time the Court may order a party to "clarify" or "give additional information" in relation to "any matter which is in dispute in the proceedings". It is nevertheless a significant provision... |
 Limitation, Discretion and the Burden of Proof - Andrew Roy, 12 King's Bench Walk Case Comment: Sayers v Chelwood (Deceased) and Chelwood [2012] EWCA Civ 1715; [2013] 2 All E.R. 232; [2013] P.I.Q.R. P8. This case helpfully provides a final answer to the question whether a Claimant seeking under s33 Limitation Act 1980 to disapply the s11 statute bar should face a very heavy burden in doing so. The answer, in short is, no. |
 Pesonal Injury Trusts and Tax Planning - Alan Robinson, Cross Keys Associates Originally a personal injury trust was simply a method of sheltering compensation paid to someone as a result of personal injury. For someone receiving means tested benefits, this would mean that the compensation did not form part of their capital for benefit purposes, and they would therefore not be caught by the maximum capital rules. |
 Wall v Mutuelle: Exploring the Limits of the Applicable Law Under Rome II - Frances McClenaghan, 1 Chancery Lane The recent case of Wall v Mutuelle De Poitiers Assurances ([2013] EWHC 53 (QB)) sheds light on the ambit of the applicable law under Rome II (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations). |
 Beware... or Be Sued! - Paul Stanton Thirteen years ago, the Woolf Reforms (allegedly) heralded a "Brave New World" for civil litigation. The intention was to give Judges significant control of cases, and prevent claims being delayed unnecessarily. Issuing proceedings was intended to be a last resort. The consequences of default would be Draconian. The sound of Practitioner's knees knocking together could be heard up and down the jurisdiction. Then... |
 Liability for Defective Premises - Andrew Roy, 12 King's Bench Walk The Defective Premises Act 1972 ("DPA") is an important but frequently misunderstood cause of action for personal injury claims. This article aims to provide an introduction to claims under the Act, and in particular to provide a practical overview of when and how the DPA applies... |
 A Brave New World: Personal Injury Practice Post-Jackson - Amanda Yip QC, Exchange Chambers The last few months have not been an easy time for personal injury lawyers but I believe the response to the Jackson reforms is encouraging. The speed with which we were required to assimilate and adjust to major rule changes presented a challenge but, by and large, PI lawyers are a practical bunch and we have risen to that challenge. |
 Privatising the Courts: Things Can Only Get Better? - Thomas Crockett, 1 Chancery Lane "Err... sorry but, we have your skeleton argument, but the Judge says he doesn't have any other documents from the Defendant. It seems half the court file has been lost". This was the lament from a very long-suffering court usher to the author just recently ahead of a Fast Track trial. |
 The Return of Fettes v Williams? - Zachary Weaver-Shojaie, MWG Solicitors The issue of impecuniosity has already gained notoriety for its lack of a certain definition. With varying approaches taken within Lagden v O'Connor itself, the issue has been one open to debate and is often reliant on the Court's involvement for settlement. Since Lagden, many have awaited a more certain definition. This has, to date, remained outstanding, and it is submitted that convolution, rather than clarification, is on the horizon. |
 Access to Justice Must Be Preserved - Dr Victoria Handley, Director of Handley Law Limited Lord Neuberger President of the Supreme Court this week gave a strong warning that the cuts being made to legal aid and to the cost of litigation are likely to have a knock-on effect to the cost of the courts. Finally judges are speaking up to defend the rule of law. It's a welcome voice in these Post-Jackson days. |
 The Sharp End of Employers' Liability - Breach and Causation Under the Personal Protective Equipment Regulations 1992 - Andrew Roy, 12 King's Bench Walk The Chief Constable of Hampshire Police v Taylor [2013] EWCA Civ 496. This case provides a telling illustration of the stringency of the Personal Protective Equipment Regulations 1992 ("the PPE Regulations") and the evidential difficulties a Defendant is likely to face rebutting liability under health and safety regulations. |
 Personal Injury Overseas and the Problem of Jurisdiction - Matthew Chapman, 1 Chancery Lane Michael Wink v Croatio Osiguranje DD [2013] EWHC 1118 (QB) (Haddon-Cave J). This case arose out of a road traffic accident in Croatia on 5 September 2009. The Claimant, a UK national domiciled in England, was on holiday with his wife when the accident happened. |
 Building a Comprehensive Argument for Claimants - Bill Braithwaite QC, Head of Exchange Chambers A phrase I like using to all those involved on the claimant's side of a catastrophic personal injury claim is: "How can we help the defence lawyers and insurer to see the real nature of the problems suffered by the Claimant?". |
 Contributing to Litigation - Marc Rivalland, 1 Chancery Lane In Onay v Brown [2009] EWCA Civ 775, the Defendant car driver admitted liability and consented to the entry of judgment against him, the sole remaining issue on liability being whether the Claimant motorcyclist was speeding and/or... |
 Insurers to the Rescue - Julie Carlisle, Boyes Turner The Government has apparently decided to wait until later this year to make a decision upon whether to increase the small claims limit for PI claims from £1,000 to £5,000. In the meantime APIL research suggests that such an increase would push 70% of PI cases into the Small Claims Process. Disaster? |
 Caselaw Since 1st April 2013 - Leopards and Spots? - Ian Miller, 1 Chancery Lane The case of Venulum Property Investments Ltd v Space Architecture Limited [2013] EWHC 1242 (TCC) concerned a relief from sanctions application under r. 3.9. The decision was in fact made under the old rules because the application was made prior to 1st April... |
 When Is It Appropriate to Rely on an Employment Expert?: A consideration of Turner v Walsall Hospital NHS Trust [2013] EWHC 1221 (QB) - Pritesh Rathod, 1 Crown Office Row Since the advent of the CPR, the use of employment experts has declined. Whereas it was once common in personal injury claims to adduce evidence from an employment consultant as to the likely career path that a claimant was going to... |
 Rare s 33 Success for Defendants - Ivor Collett, 1 Chancery Lane Cynical defendant lawyers regard applications under s 33 of the Limitation Act to extend time for bringing personal injury proceedings as invariably going the claimants' way. Some see it as effectively a statutory abolition of the limitation period. |
 Expertly Selecting Experts - Bill Braithwaite QC, Head of Exchange Chambers Selecting experts in catastrophic injury claims crops up again and again - not surprisingly, because they are so important. It is always interesting, though, to see their different approaches to problems in... |
 Jackson Reforms in Litigaton Procedure and the Competent Medico-Legal Expert - Giles Eyre, 9 Gough Square The new rules will force lawyers to take a close look at the economics of presenting an injury claim and how most efficiently to put the claim together. Medical reports remain essential to such a claim, providing, as they do, the foundations of much of the claim... |
 Instructing a Photographer: Practice Points From a Clinical Photography Expert - Tim Zoltie, Director of Clinical Photography UK & Clinical Photographer at Leeds Teaching Hospitals A photograph of an injury can be a powerful and effective tool in its ability to depict severity, and its subtle ability to evoke a sympathetic understanding of suffering and pain which would otherwise be difficult to portray... |
 Referees & Liabilities - John van der Luit-Drummond Examining the liabilities of match officials for catastrophic injuries arising in sport following the leading cases of Smoldon v Nolan, and Vowles v Evans. |
 Summary of Recent Cases, June 2013 Here is a summary of the recent notable court cases over the past month. |
 PI Practitioner, June 2013 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Wasted Costs. |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Sleep Problems in Children After Road Traffic Accidents and Their Relationship Between Ptsd and Mothers' Ptsd Symptoms - Dr Kathryn Newns Sleep disorders in children can manifest themselves immediately after a trauma, and have been found to continue years following the traumatic incident (Glod, Teicher, Hartman, & Harakal, 1997). An interesting relationship has been found between sleep problems in children and the traumatic symptoms experienced by the mother of the child following an RTA. |
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| Expert Witness Articles | |
 Compensation Culture Prompts Move to Accreditation for Medical Expert Witnesses - Mark Solon, Bond Solon Should claimants continue to have the whip hand? The Government's recent consultation paper, Reducing the number and cost of whiplash claims, stresses the need for better medical evidence. In response, Cardiff University Law School has launched its Medico-Legal Foundation Certificate for expert witnesses in association with Bond Solon Training. |
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PIBULJ, June 2013
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Shouting About Cauda Equina Syndrome - Mehmooda Duke, Moosa-Duke Solicitors
25/06/13. For many years my firm has been specialising in Cauda Equina Syndrome Cases. This year we have made Cauda Equina Syndrome UK our charity of 2013. Cauda Equina Syndrome (CES) is a sometimes unheard of condition. The lack of awareness about this condition in the medical profession is such that the Founder Chair Trustee of the charity, Annie Glover, also a sufferer, has been working tirelessly since October 2011 to bring about awareness. She has visited spinal units all over the country from Edinburgh to Belfast, from Cardiff to Salisbury talking to health professionals.
The consequences of Cauda Equina Syndrome are devastating for the sufferer and as lawyers who have dealt with many of these cases we feel very strongly about raising awareness about how the condition comes about and how it could be avoided.
Whilst it is hard to deliver an exact number due to the different variations of CES, its occurrence can vary from 1 in 33,000 people right up to 1 in 100,000.
The Cauda Equina is found at the lower end of the spinal cord and is often called the ‘horses tail’. This bundle of nerve roots is found in the lumbar area of the spine and CES is caused when these nerves become compressed. Compression can be caused by things like a slipped disc, trauma, narrowing of the spinal canal or pressure from a tumour.
CES doesn’t always just happen. There are, in most cases, warning signs or Red Flag Symptoms which need to be recognised both by sufferers and health professionals. It is the lack of awareness by the latter which leads to medical negligence claims.
What are Red Flag Symptoms:
-Saddle Anaesthesia ( numbness/reduced sensation in the private parts)
-Bladder Disturbance (difficulty in the sensation of passing water)
-Bowel Disturbance (difficulty in the sensation of bowel movements)
-Sexual Problems
-Nerve Root Pain (Back & Leg)
After the onset of CES symptoms there is a small window of opportunity to prevent permanent damage to the patient. However, very often health professionals do not recognise the red flag symptoms and therefore they do not act quickly enough. The failure to act upon the red flag symptoms is what then leads to a delay in diagnosis.
It is the delay in diagnosis which then leads to irreversible damage being caused. For sufferers, this delay in diagnosis can often mean the difference between a normal active lifestyle and one that is riddled with bowel and bladder problems, sexual dysfunction and in some cases mobility problems.
I have chosen to shout about Cauda Equina Syndrome after having witnessed the detrimental and lifelong impact it can have on many patients who have turned to me for help. Whilst compensation can help sufferers to manage and cope with CES, many just want their old life back. They don’t’ want a life unable to know when they need to open their bowel and bladder or pass wind; they don’t want a life where they cannot mobilise properly; they don’t want to have to use a catheter for the rest of their life or manually evacuate their bowels.
A client we worked with recently with CES was left unable to feel parts of her legs and feet which resulted in the permanent use of crutches; an impossible adjustment for someone who was a regular cyclist and enjoyed outdoor activities with her children. In this case it was an A&E doctor who missed the diagnosis and failed to send our client for an MRI scan.
We have other clients who have even told health professionals that they may have Cauda Equina red flag symptoms but they have been ignored because the health professional has never heard about the condition.
One of our clients even showed an ambulance crew a letter from a doctor showing the warning signs. She begged the crew to take her to hospital, but the ambulance crew who had no knowledge of the condition ignored our client’s pleas and left her at home. Her condition deteriorated and the small ‘window of opportunity’ to carry out surgery was lost.
Delays can occur when symptoms are not recognised, MRI scans are misinterpreted, referrals for urgent MRI scans or surgery are not sent or surgery is performed poorly.
The way forward surely has to be a greater awareness of Cauda Equina Syndrome among health professionals. The consequences of missing the condition are devastating.
NHS resources are always said to be limited but surely the costs involved in training health professionals about this condition would be far less than the costs involved in treating sufferers of this condition for the rest of their lives. There is then the additional cost to the NHS in cases where the condition has arisen as a result of negligence.
I know that this lines with up with the view of the dedicated volunteers at Cauda Equina Syndrome UK. Emma Willis from the charity told me that she feels a clearer definition of CES needs to be drawn up so that it becomes more easily recognisable. It was only last year that CES was finally classified as a spinal injury. According to Emma this was a great breakthrough as patients were routinely being sent to the wrong departments for care due to confusion around its categorisation. Emma told me that she feels the lack of research into the condition needs to be addressed, as does the lack of education about it amongst health care professionals and the general public.
Mehmooda Duke is managing director of medical negligence lawyers Moosa-Duke, based in Leicester
Image cc http://www.flickr.com/photos/16848914@N05/2057231177/
More Articles...
- Access to Justice Must Be Preserved - Dr Victoria Handley, Director of Handley Law Limited
- Editorial: The Scope and Interpretation of Part 18 - Aidan Ellis, Temple Garden Chambers
- Compensation Culture Prompts Move to Accreditation for Medical Expert Witnesses - Mark Solon, Bond Solon
- Pesonal Injury Trusts and Tax Planning - Alan Robinson, Cross Keys Associates
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