Wednesday, June 5, 2013

Financial Institutions e-briefing: Personal Injury Bulletin: Liability

Tacagni v Cornwall County Council and others (2013) 
In September 2007, the Claimant had been walking home with her partner after a night at the pub. The Claimant and her partner began walking along a B-road. They walked along the south-side of the road where there was a foot and cycle path. The path was raised approximately two metres above road level and was held by a retaining wall underneath. The wall projected approximately 30 centimetres above the path. In 2001 a landslide occurred, which had resulted in part of the retaining wall having collapsed.  It had been stabilised to a lower level and the area had been landscaped and fenced off.

The Claimant and her partner walked along the pathway until they decided that it was too dark and turned back. The Claimant’s partner left her to go and call a taxi.  The Claimant set off on her own, using the fence to guide her along the path. Following the line of the fence the Claimant left the path, crossing 4.8 metres of grass. Her shoes were causing her discomfort and she stopped to adjust them. She put her hand out to the fence, unaware that it had ended, and fell to the road below resulting in injuries to her head. The Claimant alleged a breach of duty of care under the Occupiers' Liability Act 1957.

The first instance judge was provided with a report compiled following an open spaces inspection that had been carried out in August 2007 by the Defendant’s inspector. The inspector had expressed concern regarding the safety of the wall further down the path and the risk that it posed to cyclists and children. He further observed that, in some places, there was no physical barrier between the wide grass verge and the road.

The judge held in favour of the Claimant, finding that there had been a very real, as opposed to remote, possibility that someone could have walked into danger on the path. He apportioned liability one third to the second defendant local authority and two thirds contributory negligence on the part of the Claimant.

The Defendant appealed on the basis that it had not been open to the judge, on the evidence that had been before him, to hold that the authority had been in breach of its duty of care. The appeal would be allowed. Although the judge had found that the path had presented a very real possibility of danger, no such accident had occurred as envisaged by the inspector and nor had the inspector envisaged an accident of the type in the instant case. The erection of the fence had been a proportionate reaction to the landslip. There had been no suggestion that further fencing had been required. Nor had it been necessary to consider the scenario whereby someone would have used the fence as a guide rail.

Hill and Billingham (Executors of the estates of Derek Billingham,  Deceased) v Lloyds British Inspection Services Ltd et el (2013)
Mr Billingham was diagnosed with mesothelioma at the end of 2007 and died in 2008. The Claimants claimed damages against three Defendants. Two claims were settled leaving only the claim against Lloyds. Lloyds employed Mr Billingham between 1968/9 and 1969/70. This included a three month period at Cottam Power Station in Nottinghamshire during its construction.
Mr Billingham alleged that he was required to test the strength of steel floors and girders. To do this he would throw a chain over the girder or beam and then put weights on it to see how much it could stand. In doing so dust would be dislodged from the top of the girders/beams and Mr Billingham would be showered in dust each time he threw the chain over.

Mr B alleged that asbestos lagging was used to insulate pipes, which broke down into a white dust whilst lagging was being undertaken, and also when lagging was removed for maintenance. This dust would shower down upon Mr Billingham when he threw the chains.
Lloyds argued that chains would not have been used to test the strength of beams and that the testing work had been done in the very early stages of constructing the power station before the installation and lagging of pipes. Lloyds also argued that in any event Mr Billingham had never worked near laggers and that asbestos levels, if any, were unlikely to have breached specified concentrations in the HM Factory’s Inspectorate’s Technical Date Note (TDN 13) which was issued a year after Mr Billingham’s time at the factory.

Lloyds referred to the Judgment in the case of Williams v University of Birmingham 2011 which stated that the Defendant in that case had been entitled to rely on recognised and established guidelines that were available in 1974. None of those highlighted a risk of asbestos-related injury at the level of exposure to asbestos fibres found. Therefore the Defendant could not reasonably have foreseen that the deceased would have been exposed to an unacceptable risk of asbestos-related injury.

The Court gave Judgment for the Claimant. Mr Billingham’s evidence (albeit hearsay) was accepted in relation to having to throw chains to test the strength of the girders. It was accepted that lagging was carried out on a rolling basis throughout the period of construction and that the substantial quantity of dust on the beams would probably have been contaminated with asbestos from lagging or otherwise.

In assessing the level of exposure to asbestos, the Court found it impossible to be precise about the fibre level to which Mr Billingham was exposed, but it was accepted that when this occurred he would have been exposed to a very high concentration and that this occurred many times each day. The Court found on the factual findings in respect of the level of exposure to asbestos that the case of Williams did not assist Lloyds as they had every reason to think that the levels to which Mr Billingham would be exposed would be in excess of the levels within TDN 13 and that workers would be exposed to a foreseeable risk of injury. Any reasonable employer in 1968/69 should have known that exposure to asbestos fibres in those quantities or anywhere near them posed a significant risk of injury and taken appropriate precautions to remove it or protect against it which Lloyd’s had not done.

Wilkin-Shaw v Fuller and another (2013)
In March 2007, during a training exercise on Dartmoor, Charlotte, then aged 14 years old, fell into a fast flowing stream and was swept away to her death. She had been on the moor with ten other children from the Second Defendant’s school. The First Defendant was at all material times employed as a teacher at the school and had been responsible for leading the exercise. During the exercise, the children were permitted to proceed on a route unsupervised, with teachers meeting them at various checkpoints. At checkpoint WT, the children were supposed to be met by a teacher. However, the teacher became lost on her way to WT and was not present when the children arrived.

The children phoned the First Defendant and they were instructed to continue. The children came to a stream and found that they could not cross. They phoned the First Defendant again and were instructed not to cross the stream but to walk around it. Another adult on the moor, W a scoutmaster, informed the children that they could cross the stream at a different location. The First Defendant spoke with W over the telephone and took W's advice that the group were getting cold and should continue to walk. The group initially attempted to cross Walla Brook but found that they could not. The First Defendant was telephoned by a student, CK, to inform him of this and an alternative route was advised by the First Defendant. When the group returned to checkpoint WT, W stated that he would accompany the group to a crossing point on Walla Brook. It was whilst crossing at that location that Charlotte fell into the stream, resulting in her death.
The Court found at first instance that the First Defendant had approached the exercise in a methodical and highly conscientious manner with evident attention to detail. The decision to allow the group to walk unaccompanied on the second day could not be said to have been negligent. It had been taken after careful consideration and after a strong performance by the group on the first day and the manner in which the group had completed the first two legs of the second morning in adverse conditions. Finally, the advice given by the First Defendant over the telephone to CK had not been negligent. The instruction not to attempt to cross the Walla Brook had been entirely appropriate. In any event, had there been a breach of the duty of care, the intervention of W had broken the chain of causation. The decision was appealed.

The Claimant submitted that the teacher had been personally negligent in failing to be present at WT, that the school was vicariously liable for that failure and that the teacher's negligence had caused or contributed to Charlotte's death. The Court found that in the circumstances, given the high standard reasonably to have been expected of the teacher, and the seriousness of the elementary errors made, there had to be a finding of negligence against the teacher. However, it was very speculative as to what course events would have taken had the teacher been present at the checkpoint. It could not have been concluded, on the evidence, that the teacher would probably have accompanied the children on the next leg of the route. It was not possible, on the evidence, to conclude that the teacher's presence at WT when the children had first arrived would have led to a different outcome or had been causative of the second attempt to cross the stream. Even if the teacher had stayed, the intervention of W, anxious to help and apparently authoritative, would have broken the chain of causation. It could not have been foreseen that the children would have disobeyed instructions from the First Defendant. Subsequent events could not have fairly been attributed to the absence of the teacher from WT. A finding that her presence there when the children had first arrived would have prevented the second attempt to cross the stream, with its tragic consequences, involved too much speculation to be tenable.

Germaine v Epsom & St Helier University Hospitals NHS Trust (2013)
The Claimant suffered a serious back injury as a consequence of a lifting accident which occurred in the course of her employment with the Defendant.

The Claimant was a senior nursing sister at a hospital. In March 2008, on a Monday morning, she had arrived at work at 7am in order to prepare a clinic due to start at 8am. Due to the laying of a new floor covering over the weekend, contractors had removed all of the seating from the waiting area and had not returned it. The whole area was also covered in a film of thick dust. The seats, which were in sets of four fixed to metal frames, were heavy and awkward.

Having seen four hospital porters on a break outside the main entrance on her way into work, the Claimant contacted them, but was told that they were too busy and would not be able to provide any assistance until after lunch. She subsequently contacted the cleaners and the maintenance department, but nobody was able to assist. By approximately 7.30am, whilst the Claimant had been unable to obtain any assistance, eight patients had arrived for the clinic, some of whom were elderly and frail. The Claimant accordingly considered that she had no option but to drag the heavy wooden receptionist's desk out of the way and to lift the sets of chairs. She dragged the first set of chairs, but, having seen that they had marked the new floor, proceeded to carry a second set of chairs.

On lifting a third set of chairs, the Claimant felt an excruciating pain in her back and was unable to move for several seconds. She subsequently forced herself to stand as other nursing staff began to arrive and telephoned her line manager who was based at a different hospital, to tell her what happened.

The Defendant admitted primary liability, but claimed contributory negligence on the part of the Claimant. The Defendant alleged that the Claimant had received training and instruction in health and safety, would be fully aware of the risks of moving heavy furniture and that the Claimant had failed to wait for assistance. The Court found that on the facts, there had been no fault at all on the part of the Claimant and the plea of contributory negligence would fail. Whilst it was accepted that the Claimant had received training in health and safety, that had related specifically to lifting patients during the course of nursing and had not extended to lifting furniture. With regard to the contention that the Claimant had failed to wait for assistance, assistance would not have arrived until after lunch. It had not been reasonably practical for the claimant, as an employee, to avoid moving the furniture, as assistance had been refused from all available sources.

Smith v Fordyce and another (2013) 
In March 2007, the Claimant and the First Defendant were travelling by car together. The Claimant was the passenger in the First Defendant's car. During the journey, the first defendant lost control of the car and crashed into a wall. The Claimant sustained injuries including brain damage. Immediately after the accident, the First Defendant gave a statement to the police in which he stated that he had slid on black ice and that that had caused him to lose control of the car. The police noted that the road surface had been covered in ice that was not initially visible and had taken no further action against the First Defendant.

In January 2010, the Claimant issued proceedings seeking damages for negligence. The First Defendant denied liability and stated that the accident had been caused by black ice on the road. In June 2010, the First Defendant had assisted in the preparation of a witness statement for the instant proceedings. That draft statement was consistent with the account given to the police and contained in the Defence. At the end of June, the First Defendant had met the Claimant by chance. Subsequently, the First Defendant had made a number of changes to the draft statement by which he changed his position and accepted responsibility for the accident. Consequently, the Second Defendant insurer was added to the proceedings.

At first instance, the judge found that the First Defendant's honest belief following the accident was that he had lost control due to the ice. The Judge did not believe the First Defendant's changed position and found that the cause of the change of position had been the chance meeting with the Claimant and that the First Defendant had acted out of sympathy for the Claimant in the belief that it was right to help him to gain compensation from the Second Defendant. The judge found that the accident had been caused by the car skidding on black ice and that no blame could properly be placed on the First Defendant for his loss of control of the vehicle. The Claimant appealed.

The issues to be determined on appeal were whether the judge had erred in finding that the immediate cause of the loss of control had been black ice and that no proper criticism could have been attached to the First Defendant in the circumstances. The appeal would be dismissed.
On the facts, the Judge had not only been entitled to reach the conclusion that the First Defendant had lost control of the car through skidding on ice, but the factual evidence had pointed strongly in that direction. The judge had been satisfied that the First Defendant had not been travelling at an excessive speed, that he had had no reason to anticipate icy road conditions and that he had skidded on a patch of black ice which had not been visible and could not reasonably have been foreseen. In the circumstances, the judge had been right to conclude that those facts were sufficient to rebut the inference that the accident had been the First Defendant's fault.

Cockbill v Riley (2013)
In July 2006, the Claimant, then aged 16 years, attended a party at the defendant's home. They are both teachers by profession. The Defendant had bought food for a barbeque and a limited amount of alcoholic drink, namely a 12 pack of small bottles of Budweiser beer and 12 bottles of Vodka Kick.

At the party, a large paddling pool was provided for the use of the guests. The Claimant said that people started jumping and bellyflopping into the pool. There were six or seven people who jumped in several times. One girl was thrown into the pool.

The Claimant did not arrive with any swimwear but during the party was provided with some by a friend. The Claimant changed into the swimwear and then said to a friend “watch me go” and went across to the pool intending to do a bellyflop and made a big splash. However, he misjudged the jump and landed head-first in the pool. He doesn't remember what happened after that. As a result, he sustained serious spinal injuries. He brought a claim against the Defendant in negligence.

The Claimant alleged that by allowing the pool to be used, the Defendant had created a foreseeable risk of danger and injury. Also that by not intervening earlier and more forcefully when a number of guests had been running and jumping into the pool, the Defendant had created a situation with an obvious risk of serious injury.

The Claimant alleged the area around the pool was wet. There had been a lot of splashing and water had gone over the side. The Claimant could not explain how he ended up with such injuries if he only fell in. He had run from the bench to the pool. He did not slip and fall backwards, his momentum was forwards.

The Defendant stated that as the party went on the children “got a little bit boisterous”. Some were jumping in the pool and splashing. People started to run and jump in but he maintained that he was keeping an eye on them. The Defendant served food and the pool was empty for approximately 10 minutes prior to the accident. Out of the corner of his eye the Defendant saw someone run as if to dive. The Defendant said he felt he had dealt with the boisterousness by serving the food and did not think he should have done more.

The Court considered the various issues in order.
  • The Court found the Defendant had bought a modest quantity of alcohol. There was no evidence that anyone at the party drank alcohol to the point where they were misbehaving, rude or aggressive, or unsteady on their feet. 
  • The Court did not accept on the balance of probabilities that anyone did a somersault through the air, nor a dive, nor tried to do a bellyflop or star jump. 
  • The Court accepted that when things seemed to be getting rather boisterous the Defendant told people that the food was ready and that this caused a break in the action and that no-one was in the pool at the time of the accident.  
  • The final issue was whether this incident occurred because the Claimant slipped on grass which had been allowed to become very wet. The Court did not find on the balance of probabilities that the Claimant did slip. Even if the Court had found that he did slip on wet grass, this would not have been enough to establish liability on the part of the Defendant. The use of a paddling pool by a number of teenagers, whether boisterous or not, will inevitably lead to some spillage.
The Claimant’s claim was dismissed. It had not been reasonably foreseeable, even after a number of boys had jumped into the pool feet first, that someone would have attempted to carry out a dive or a bellyflop and thus suffer grave injury.

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