PIBULJ
Abbot v Long: Costs in Credit Hire Claims - Adam Gadd, Pump Court Chambers
12.01.12. The case of Abbot v Long [2011] EWCA Civ 874 will have important implications for costs arguments in credit hire cases. In particular, caution must be exercised where there is a risk that a claimant may not recover close to the amount claimed.
The appellant, (claimant in the proceedings below) appealed the decision of Her Honour Judge Marshall QC made at Central London County Court that there be no order for the costs of the litigation.
The claim arose out of a road traffic accident. The appellant sought recovery for credit hire charges. The period of hire was from June 2008 to December 2009 for which £48,000 was claimed. At trial, Mr Abbott accepted he would have been able to finance a substitute vehicle. The damages were reduced to £8,600 accordingly. Damages were also reduced by 75% on account of contributory negligence.
On the issue of costs, the judge found that the claim had been “grossly exaggerated” and that the litigation had been run as a commercial enterprise by the hire company, who were driving the claim. They had failed to properly scrutinise the claim and had not taken a responsible attitude towards the conduct of the litigation, particularly with regard to the duty to mitigate. She took the view this was a very significant issue of conduct, and was heavily to be discouraged.
The judge made no order as to costs, taking in to account;
i) that there would have had to be a fast track trial in any event since the Defendants had made no offer,
ii) the Claimant’s conduct showed no proper regard for their duty to mitigate their losses, and
iii) that the Defendant had had a significant measure of success both in resisting the claim for credit hire and establishing contributory negligence on the part of the Claimant.
On appeal, the Appellants accepted that they would have to show the judge had erred in principle or that the decision was perverse. They argued that there should have been no reduction to their entitlement to costs based on the finding of contributory negligence. Further, the inflated value of the claim was due to a misjudgement rather than dishonesty. The conduct was not reprehensible to the extent that a reduction in costs could be justified.
The Court of Appeal held that the starting point was CPR 44.3 which sets out the discretion to award costs. Under this rule conduct of the parties can be taken in to account in the exercise of this discretion.
On the issue of contributory negligence the court pointed out that there is no general rule preventing a reduction based on this, however in the circumstances of this case the issue caused no distinct costs and therefore any reduction would have been minimal. The central issue was whether costs could be reduced due to the conduct of the Appellants.
Arden LJ referred to the judge’s comments that the hirer was a serial litigant, who ought to have had systems in place to ensure claims were pursued appropriately. While this conduct was not dishonest it was blameworthy or capable of being reprehensible. Despite the fact that the conduct had not occasioned any wasted costs, since a trial would have been required in any event, a reduction could be made on the grounds of misconduct, as long as the court was satisfied that this would be a proportionate sanction.
The judge at first instance had taken a number of factors in to account, including the inflated claim for credit hire charges, the failure to have proper regard to the duty to mitigate loss or keep expenses to an appropriate level and the use of the litigation as a commercial enterprise. It was held that she had given a carefully reasoned judgement and was entitled to take in to account the appellant’s conduct. Reducing the costs was not a disproportionate sanction. The appeal was therefore dismissed.
Adam Gadd
Pump Court Chambers
Image ©iStockphoto.com/thesuperph
The Development of the Duty of Care Owed by a Tour Operator to a Holidaymaker - Clara Johnson, 3 Hare Court
The development of the duty of care owed by a tour operator to a holidaymaker
It has hitherto been beyond doubt that should a holidaymaker sustain injuries during the course of a package holiday caused by a breach of duty by the tour operator or local supplier, he or she only has a cause of action pursuant to the Package Travel Regulations - which in essence, is a statutory claim for breach of contract. The holidaymaker does not have a separate and additional cause of action in tort. However, in two recent cases there appears to have been a slight shift in this analysis such that the ground may be opening up for holidaymakers to bring claims against a travel agent or tour operator in tort.
The first of these cases is Parker v TUI [2009] EWCA Civ 1261. Mrs Parker sustained injuries in an accident that occurred just after she had completed a toboggan run in Austria. At the time she was on a package holiday supplied by the defendant but had purchased a ticket for the toboggan excursion separately in resort. The defendant’s reps had accompanied Mrs Parker and others on the bus which took them to the tobogganing event. The reps had briefed the participants on the bus and at the top of the mountain that at the end of the run there was a flashing red light at which point they must dismount their toboggans and walk the rest of the way down the mountain. The reps spread themselves out among the participants during the event. The accident occurred when Mrs Parker remounted her toboggan at the end of the run and careered into straw bales which were hard and frozen.
Although much of the argument at trial and on appeal centred on whether Mrs Parker had a contract with the defendant or with the local supplier, it was argued that the defendant was nonetheless liable in tort. Mrs Parker argued that the defendant was negligent because amongst other things, it had not provided reps to stand at the end of the toboggan run. If they had been there, they could have helped Mrs Parker down to the bottom of the mountain or at least stopped her from remounting the toboggan.
It was argued by the defendant that the tour operator owed no duty of care to the claimant. This argument was firmly rejected by the Court of Appeal. It found that there was a duty of care, which had been created by the assumption of responsibility on the part of the defendant - specifically, that local reps had accompanied Mrs Parker and others on the run and had given them instructions and directions as to how to complete the run safely. Ultimately, the Mrs Parker’s appeal failed because the scope of the duty contended for was too high. There were also insurmountable difficulties with causation.
Nonetheless, Parker is clear authority for the proposition that in certain circumstances, regardless of the contractual nexus between a tour operator and holidaymaker, a tour operator may owe a duty in tort to the holidaymaker. The advantage of this from the holidaymaker’s point of view is that if the excursion contract is with the local supplier, he or she has a remedy against the tour operator. Whether there has been an assumption of responsibility depends on the facts of each case. In many excursion cases it is likely that there has been an assumption of responsibility on the part of the tour operator - for example by the carrying out of a risk assessment or giving directions in relation to safety issues. However, there is highly unlikely to be a tortious duty owed in cases where a local rep has simply sold tickets as agent on behalf of a local supplier - save for any narrow duties owed arising from its position as agent.
The second case is Harrison v Jagged Globe Limited, unreported, Central London County Court 14 April 2011. The facts of this case are unusual as it involved Sir Ranulph Fiennes and a ’staged’ accident performed during the course of an expedition to Peru. The defendant tour operator specialising in mountaineering expeditions assisted with a planned expedition to Peru. The defendant asked Sir Ranulph whether he wanted to be provided with a leader on the expedition, which he declined. However, he was provided with local guides who were to assist with acclimatisation, altitude training and training in climbing techniques. Sir Ranulph invited the claimant to join him on the expedition. During the expedition, the claimant agreed to take part in a staged fall down a crevasse and subsequent rescue. There were two staged falls - both of which resulted in injuries.
The local guides supplied by the defendant had assisted with the staged falls. The court found that the provision of assistance with the staged falls did not form part of the package holiday contract since it was not contemplated until well after the contract had been concluded. However, the local guides supplied by the defendant had assumed responsibility for the staged falls in agreeing to assist with them and in so doing had imposed a tortious duty on the defendant to provide this assistance with reasonable skill and care. The court found that the first staged fall had been poorly managed and executed and there was breach of duty in relation to it (albeit there was a reduction for contributory negligence by 40%). However, in relation to the second fall, the claimant had accepted the risk of injury, which would have been obvious from the first fall and the defendant was not liable on account of the principle volenti non fit injuria. Essentially, liability was established against the defendant because of the assumption of responsibility of the local guides who had been supplied by the defendant as part of the package holiday contract.
Both decisions reflect an important development in travel law. They open up the potential for claims to be brought against a tour operator in tort for its negligence or that of its local suppliers, whereas previously claims have been almost exclusively contractual in nature. It remains to be seen how far this approach will be extended. Although the courts may readily find there has been an assumption of responsibility and therefore that a duty of care is owed to the claimant by the tour operator, practitioners ought to keep in mind that the courts are unlikely to find there has been a breach of duty where the scope of the duty contended for is too high, as was the case in Parker. As Longmore LJ commented in Parker, to allow Mrs Parker’s appeal would effectively ’encourage potential claimants to believe that whenever an injury occurs someone must be to blame. That is not what the law of negligence is about".
CLARA JOHNSON
August 2011
The Dangers of Organised Sport - Tim Kevan, Editorial
31/10/11. The Court of Appeal has made some useful comments as to the standard of care expected of a rugby club organizing a training session which may well have wider application to other sports and events.
Most people would not associate the game of rugby with personal injury claims. However, it has certainly arisen over the years, notably in two cases involving referees (Smoldon v Whitworth and Nolan [1997] PIQR P133 and Vowles v Evans & Welsh Rugby Union [2003] 1 WLR 1607) and one case involving the playing of a player in a game for which he was too old (Mountford v Newlands School [2007] ELR 256).
A different type of personal injury case came before the Court of Appeal on 4 October 2011 in the case of Sutton v Systen Rugby Football Club Ltd [2011] EWCA Civ 1182. In that case, a sixteen year old claimant was injured in pre-season training rugby organised by his Club. In going for a touch down try, the claimant dived and at the same time tagged. He fell onto his right knee which was gashed by a plastic object, found by the judge to have been a broken off part of a cricket boundary marker, which had been left behind by members of a cricket club who had used the area a few days earlier. The marker itself had been a white triangle attached to a stake; the triangle had become broken off leaving only a stub in the grass turf.
It was agreed that the Club owed a duty of care to those training under the Occupiers Liability Act 1957. Specifically, to take such care as was reasonable in all the circumstances of the case to see that the claimant (and their other visitors) would be reasonably safe in using the Club's premises. It was also agreed that there should have been a general inspection of the pitch before the training session began and that no such inspection took place. But the Club asserted that such general inspection would only be for obvious obstructions or difficulties (such as broken glass or dog excrement) and could not be such a detailed inspection as to discover a broken off part of a cricket marker especially if it did not obtrude above the surface of the grass, as the stub in this case did not. This raised two issues: the type of inspection required and whether it would have made any difference in any event ie causation.
Pitch inspection
The Rugby Football Union ("the RFU") itself provides risk assessment guidelines and states that such guidelines are for the purposes of identifying any unsafe condition. They also provide a safety check list which includes a recommendation to check the ground for foreign objects "such as glass, concrete, large stones, dog waste". Longmore LJ (giving a judgment with which the other two judges agreed) commented in this respect: “Although these guidelines refer to matches, it seems to me that this duty should also apply to training sessions and the Club did not seriously dispute that.”
The judge rejected the suggestion that a quick walk over the pitch would be sufficient and decided that all or most of the ground should be covered "at a reasonable walking pace". Longmore LJ commented, “So far, it seems to me that the judge was right.” However, he then parted company with the judge who had added that a "slightly more careful degree of attention" should be paid to the touch down ends. Longmore LJ said: “It seems to me that, whatever the appropriate standard of inspection is, it should extend to the pitch as a whole rather than that there should be different standards depending on what part of the pitch is being inspected. It is true that the particular training session in this case was a touch rugby session but the coaches could easily have decided to follow it (or precede it) with a full match training session when tackles (and a consequent fall) could happen on any part of the pitch. It is, moreover, unnecessarily complicated to require different standards of care for different parts of the pitch.”
However, whilst he didn’t accept the Club’s suggestion that it would have been enough if the pitch were inspected by someone such as (in this case) one of the coaches walking round the perimeter, he did emphasise that “It is important that neither the game's professional organisation nor the law should lay down standards that are too difficult for ordinary coaches and match organisers to meet. Games of rugby are, after all, no more than games and, as such are obviously desirable activities within the meaning of section 1 of the Compensation Act 2006 (neither party suggested that this section in any way altered the common law position).”
He then went on to give a conclusion of this aspect of the case which would be useful to give to rugby clubs throughout the land: “I would therefore conclude that, before a game or training session, a pitch should be walked over at a reasonable walking pace by a coach or match organiser (or someone on their behalf) and that, if that is done, that will satisfy a Club's common law duty of care in relation to such inspection. If, of course, more than one coach or organiser is available, each such person could inspect a pre-agreed part of the pitch.”
Causation
This then raised the issue of causation. In other words, would it have made any difference if a proper inspection had taken place? This is for the claimant to prove (see eg Fairchild v Glenhaven Funeral Service [2003] 1 AC 32 at paragraph 8 per Lord Bingham). In doing so, the court looked at the claimant’s own evidence who in his witness statement said he had not observed the marker (namely, what was left of it) as it was below the level of the grass. He also stated to his medical adviser that the stub would not have been immediately visible on a casual inspection though this later statement was of limited value as Longmore LJ had already stated that the inspection should not have been casual but instead conducted at a reasonable walking pace. The judge also looked at the evidence of a Mr Tressler who was the only witness who actually saw the stub at the time of, although after, the accident. He said the stub was sticking out of the soil below the level of the grass. In addition, some of the witnesses recorded the grass as being lush and the claimant’s team-mate, Ashley Rideout, who attended to Mr Sutton immediately after the accident, did not observe the stub in the grass. In the light of all of this, Longmore LJ concluded that “even a reasonable "walk over the pitch" inspection would be unlikely to have revealed the stub or, at least, that the claimant has not been able to prove that such an inspection would, on the balance of probabilities, have revealed the stub's existence.”
For these reasons, the court therefore allowed the appeal. It is telling that whilst Longmore LJ expressed sympathy for the claimant, he also went on to conclude that the court “has to look at the case from a wider perspective than just [the claimant’s] own injury and must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from the courts than it should be.”
Conclusion
This case will hopefully provide useful guidance not only to rugby clubs but to sports clubs up and down the country who I would imagine are often confused as to what are their legal responsibilities and to what standards they are being held. It would certainly seem useful for all governing bodies to disseminate to their members the conclusions of this case along with guidance on the wider legal duties they owe.
Tim Kevan, Editorial
Image ©iStockphoto.com/padnpen
Developments in Personal Injury Fraud Cases - Adam Gadd, Pump Court Chambers
05/12/11. This year has seen a number of decisions of the appellate courts regarding fraudulent, or allegedly fraudulent claims in personal injury cases. Typically, these have tended to arise around staged or invented road traffic accidents but there have been decisions that do not quite fit that mould.
This article will attempt to give a brief summary of those decisions.
The first case of note is Zurich Insurance Co plc v Hayward [2011] EWCA Civ 641. This was an action by the insurance company alleging that settlement of an earlier personal injury action had been obtained by fraud. That action had been struck out and the insurance company subsequently appealed. The original action had been compromised by way of consent order and a Tomlin order. The Judge at first instance struck out the claim on the basis that the consent order created an estoppel by res judicata and that the fraud issue, pleaded as an exaggerated claim, had been compromised.
The insurance company appealed the strike out decision. The Court of Appeal found that a consent order created an estoppel if the parties to the second action were the same as the parties to the first and the issues raised in the second action were necessarily compromised in the first action, Kinch v Walcott (1929) AC 482 PC (Bar) considered. Before an estoppel could arise, there had to be congruence between the allegation of fraud which was determined or compromised in the first action and the allegation of fraud made in the second action. Although in the instant case an allegation that a disability was being exaggerated for gain amounted to fraud and that allegation of fraud was similar to the allegation made in the second action, it was not the same allegation and it was not clear exactly what was compromised in the first action.
The Court of Appeal held that finality of litigation was desirable for many reasons but in the context of the instant case the principle was designed to protect a litigant from being vexed more than once by the same allegations. That consideration did not weigh heavily in the instant case. There was nothing apparently harassing about the insurer’s conduct in bringing the action. It appeared to be acting in response to fresh evidence of which it was previously unaware and could not with reasonable diligence have been expected to discover at the time of the first action. The public interest in the integrity of the administration of justice and the private interests of the insurer in seeking the investigation of the allegations of fraud far outweighed the public interest in the finality of litigation and the Defendant’s understandable wish to avoid a second action. The insurer’s appeal was therefore allowed.
In the case of Singh & Ors V (1) Habib (2) AIG [2011] EWCA Civ 599, the Court of Appeal allowed an appeal against the trial Judge’s decision not to admit fresh evidence of fraud after trial. The court found that CPR r.52.11(2) gave the court a wide discretion as to when it would admit fresh evidence, but Ladd v Marshall continued to influence the way in which the courts should proceed. The court would be particularly acute to consider questions of admitting fresh evidence when the public interest in the prevention, so far as possible, of fraudulent road traffic claims came before it. In the instant case it was in the public interest to admit the evidence. Modest additional evidence indicating that the result might have been wrong was admissible and persuasive and in the particular context, the case would be reinvestigated in a new trial.
Guidance on the case management of fraud issues in personal injury cases was given in the case of Locke (1) Stuart (2) v Axa Corporate Solutions Services Ltd [2011] EWHC 399 (QB). The instant case involved an allegation that there had been a conspiracy to claim compensation following staged road traffic accidents. The case of the second defendant insurer was that the accident had been staged. It sought to adduce evidence showing the common features in this and eight other accidents. The guidance given was as follows; First, it should be possible to prepare a document which accurately and fairly summarised the evidence so far as the primary facts were concerned. It could identify, in the manner of a Scott schedule, which primary facts were in dispute, so that the necessary material could be adduced to deal with that. It might also identify which inferences were agreed and which were not. Further, a document could be devised which set out in a short form how entries on Facebook were created and what inferences might safely be drawn from them; that document could be used in any case where this class of evidence was adduced. Moreover, insurers making allegations of this kind had to do so with care. Their legal advisers had obligations which required them to advance such allegations only on proper grounds. It would be inappropriate for trial bundles to contain the names and personal details of people with the suggestion that they had been guilty of fraud unless there were proper grounds evidentially for that assertion.
Given the increasing amount of cases in which fraud is alleged, it is likely that the appellate courts will be busy dealing with further cases in the near future. Practitioners may be well advised to watch out for developments.
Adam Gadd
Image ©iStockphoto.com/bedo
Pedestrian Road Traffic Accident: Is Eye Contact Vital? - Oliver Rudd, 12 King’s Bench Walk
22/09/11. For those practitioners who have had the pleasure of driving through a busy town centre on Friday or Saturday night, the real risk of pedestrians stumbling into the road will be a familiar hazard. Two recent decisions by the Courts in addressing cases involving pedestrians who were found to have stepped into the path of an oncoming vehicle provide a useful reminder of the factors which may assist the court in determining liability.
In Leigh Birch (By his Father & Litigation friend John Birth) v Marjorie Paulson [2011] EWHC 1614 (QB) the Claimant suffered a serious head injury when he his hit by the Defendant’s car when attempting to cross a single carriageway under the influence of alcohol. It was averred by the Claimant that the Defendant should have appreciated that he was waiting to cross, that he may have stepped out, and as a precautionary measure, she should have reduced her speed and/or steered towards the centre of the road.
The Court found Defendant had been travelling at 40 mph, 10 mph below the road’s speed limit, when she first saw the Claimant by the side of the road rocking to and fro and making no attempt to cross. However it went onto hold that the risk of the Claimant stepping out could only have been considered by a reasonable driver as extremely remote, and there was nothing to suggest that the Claimant was intoxicated or otherwise likely to act irrationally-it was held that though he had been swaying prior to crossing the road, the swaying could equally have been interpreted by the Defendant as a natural posture adopted as the Claimant stood with his feet half off the kerb. In the judge’s mind, a reasonable driver could have rightly assumed that as the Claimant had not tried to cross while she was visible to him, he would not suddenly attempt to cross in her path. Importantly the Court also found that the Defendant would have been able to see the Claimant clearly looking in the Defendant’s direction prior to crossing the road and there was nothing to alert the Defendant that the Claimant was unaware of her presence or that he might do something foolish.
The Court accepted that there was nothing particularly blameworthy in the Claimant’s decision to cross the road at the point where the accident occurred as it was not an intrinsically dangerous place to cross, and it was not a case where the pedestrian crossing was so close it was perverse not to use this instead. The Court also considered what other factors may have influenced the Defendant’s attention prior to the accident, including the presence of a witness walking her dog with her grandchild, who arguably posed more of a potential hazard than the Claimant, and took into account that the Defendant was not driving at the speed limit, and that this was not a particularly narrow road.
The Court reiterated the importance of not unwittingly replacing the standard of the reasonable driver with that of an ideal driver, and not relying too much on hindsight, as set out in Stewart v Glaze [2009] EWHC 704 (QB). However it accepted that such considerations must also be balanced with the fact that, as set out in Lunt v Khelifa [2002] EWCA Civ 801, a car is "potentially a dangerous weapon" and car drivers clearly owe duties of care to those around them. Incidentally Lunt was also a case involving a pedestrian who had been drinking who unexpectedly stepped into the road where the driver was similarly not held to be negligent. The Court also made reference to the Court of Appeal decision of Barlow v Entwistle (unreported) 15 May 2000 where a Claimant had run into the road following horseplay and in which the Claimant’s claim also failed.
Though the issue of negligence was not made out, the court went on to consider the issue of causation. The only realistic basis on which it would have been possible to find in favour of the C was if D had been required to reduce her speed to around 35 mph-it would have been overcautious to require her to reduce her speed any further. From the expert evidence, the court held that a serious accident would still have occurred if she had reduced her speed to 35 mph, however it was of note that the judge was unwilling to conclude from the expert evidence that the reaction time would have been less than 1 second-he accepted the evidence from the Defendant’s expert that reaction times clearly varied between individuals and that even the same individual might exhibit different reaction times on different occasions. He went onto hold that had his conclusions as to primary liability been wrong, he indicated the D would have been found 75% contributorily negligence given he had stepped out in front of an oncoming car.
The findings in this case can be compared with the recent case of O’Connor v Stuttard [2011] EWCA Civ 829 in which the Court of Appeal overturned a first instance decision that a driver had taken reasonable care and was not negligent when he clipped the back of a child’s foot who had step back from the kerb as he was passing. The child had been playing with a group of children at the right hand side of the road, and had run across to the left hand side of the road to follow a ball shortly before the Defendant passed him. The Defendant had positioned himself to the left hand side of the road upon noticing the children playing to his right, but had not moved to the centre of the road when the Claimant had dashed to the left. The trial judge had held that it was not negligent for the motorist to fail to sound his horn or fail to stop as there was only a remote possibility that the child would step backwards off the pavement.
The Court of Appeal held that the judge was wrong to suggest that the possibility that the Claimant might step from the kerb was remote-it was no surprise that young children were playing on a street, and in effect he was driving in a playground where the duty upon him was high. Importantly the child’s attention had been on a ball, not on the vehicle approaching. The Defendant had seen that the Claimant had continued to play and was not looking at him and though the movement of the child was wholly unpredictable, it was for the Defendant to ensure that the infant was aware of his presence and was keeping still before proceeding or that he at least sounded his horn to make him aware of his presence.
Clearly, paragraph 205 of the Highway Code which reads "There is a risk of pedestrians, especially children, stepping unexpectedly into the road" may be a vital consideration for the Court, and in the contexts of children, the Court is likely to place a heavy duty of care on motorists. Practitioners will be aware that many of these types of cases are highly factually specific, with, as the judgment in Birch illustrates, a myriad of factors to be considered by the court in determining liability. However both cases provide useful pointers as to the salient factors which may be crucial in the apportionment of liability with the court’s interpretation of the pedestrian’s awareness of an oncoming vehicle clearly a vital consideration in these types of cases.
Oliver Rudd
12 King’s Bench Walk
Image ©iStockphoto.com/tumpikuja
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