Editorial: Basic Hire Rates - Aidan Ellis, Temple Garden Chambers

19/12/11. It turns out that for the last ten years we have all been misusing the term spot hire rates. The Court of Appeal in Bent v Highways and Utilities Construction and Allianz Insurance [2011] EWCA Civ 1384, prefers the term “basic hire rates” which apparently distinguishes the situation in credit hire cases from freight or charter hire. Apart from altering the language, has the Court of Appeal in Bent finally resolved the issues surrounding the identification of these basic / spot hire rates? 

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December 2011 - PI Practitioner

EMPLOYERS' LIABILITY FOR EXPOSING EMPLOYEES TO ASSAULT

1. Vaile v Havering LBC, [2011] EWCA Civ 246, [2011] All ER (D) 124 (Mar) - the claimant was a teacher at a school for children with learning difficulties. One of the Claimant's pupils, X, assaulted her twice. In the second incident, the claimant suffered such severe injuries that she was unable to return to work. She brought an action against the Defendant for failing to provide a safe system of work.

At first instance, John Leighton-Williams QC found that while X had never formally been diagnosed as suffering from autism, he did in fact suffer from Autistic Spectrum Disorder (ASD). He found that a highly structured approach should have been employed for X, but had not been. However, the court held that there was no evidence that the teaching of X had fallen below what was educationally acceptable for him, or had been inadequate so as to result in an unsafe system of work for the claimant. The judge also held that if there had been negligence on the part of local education authority (LEA), that had not caused the claimant's injury.

Held on Appeal: that the judge's primary finding of fact logically compelled the conclusion that the LEA had not taken adequate steps to provide the claimant with a safe system of work. The LEA should have had a system in place to establish whether or not pupils at this school suffered from ASD; and ensured that teachers were properly instructed in techniques to manage children with such conditions. The claimant had no adequate training. Accordingly the judge had not followed through the logic of his own findings. The proper conclusion was that the LEA had failed in its duty to provide the claimant with a safe system of work. The Court of Appeal also overruled the judge on the causation point.

2. Lloyd v Ministry of Defence [2007] EWHC 2475 (QB), [2007] All ER (D) 407 (Oct) - The claimant was a prison officer. He was violently assaulted by a prisoner, H. H's history sheet had recorded no information pertaining to his violent history. Claimant submitted that he had not known that H had had a long history of violence including violence to prison officers. He further submitted that if he, or those around him, had known about H's violent history, further precautions would have been taken which would have avoided the incident.

Held: The duty was on the employer to keep his servant reasonably safe; the employee would of course take reasonable care for his own safety, but that had not diminished the primary duty of the employer. The defendants had been negligent in failing to inform the senior officer or the prison officers, including the claimant, of H's history of violence. Such negligence was a material cause of the incident and the claimant's injury. Therefore the defendant was liable.

3. In Connor v Secretary of State for Scotland [1999] 1 PLR 221 (OH) - AC was a prison officer on duty in the wood assembly shed. He asked a prisoner, FC, to give him a piece of wood which he ought not to have had. FC threatened AC. AC said that FC would be placed on report, whereupon FC attacked AC; FC's brother, PC, joined the attack.

The prison was aware that these men had a history of attacking officers. FC and PC, together with a third brother, MC, had in August 1994 attacked another prison officer. The board which allocated prisoners to different workshops took into account disciplinary records.

AC argued that prison management should not have allocated FC and PC to the same location, given that this produced an increased risk of assault. The Secretary of State argued that the decision as to allocation was a professional decision (involving balancing the rights of prisoners, the expectations of prison officers and the effective management of prisons) and so liability could not be found unless it was shown that no reasonably competent board would have allocated the brothers to the same work party, which in turn required expert evidence. AC further argued that the prison management were under a duty to warn officers working in the wood assembly shed that FC and PC were working together in the same shed.

Held: There was a higher risk of assault if FC and PC were placed together; that was, or ought to have been, foreseeable by the prison management who decided on the allocation of prisoners.

The duty owed to AC arose from his status as an employee; the prison management had a discretion as to the appropriate disposition of prisoners, which required balancing different interests such as the training of inmates, the maintenance of good order and administration, the best use of resources and the safety of officers. Liability arising from the exercise of a discretion arose when the discretion was exercised so carelessly or unreasonably that there had been no real exercise of discretion. On the evidence, it was not shown that no reasonable board could have decided to allocate PC to the same work party as his brother. The claimant failed on this ground.

However, it was reasonably foreseeable that if FC was approached in a confrontational manner by an officer he would resort to some form of violent behaviour more readily than other prisoners, in the knowledge that his brother would come to his aid. Had AC been advised that the brothers were present together, he would not have approached FC in the manner he did. The assault would not have occurred. Accordingly, the prison authorities were in breach of their duty of care by failing to inform AC that the two brothers were working together in the same shed.

Who you gonna call?: challenging the coroner’s discretion to call witnesses in inquests into hospital deaths - Jemma Lee, Pupil Barrister, 3 Serjeants’ Inn

16/12/11. The deceased, M, went into cardiac arrest and died in hospital. Shortly before his death, M had undergone successful hip replacement surgery. He was discharged but the following day presented with a chest infection and diarrhoea. He was admitted to hospital where he tested positive for Clostridium difficile infection.  M’s condition deteriorated and he was taken to the intensive care unit under the care of Dr A, a consultant endocrinologist. He was then moved to a Clostridium difficile Cohort Ward, ward B4, where he was under the care of Dr P, a consultant gastro-enterologist. Nine days after being moved to ward B4 he had a cardiac arrest. A post mortem was conducted and the cause of death was recorded as coronary heart disease exacerbated by Clostridium difficile.

An inquest was ordered and the family provided the coroner with lists of witnesses who they wanted to be called. They sought to...

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