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Peter Barrie: Personal Injury Law 2/e: Liability, Compensation, and Procedure

Updates to Part B: LIABILITY

Updates to Part B: LIABILITY

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Vicarious liability
Chapter 2.F

Vicarious liability of an employer for harassment

Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34

The claimant was subjected to bullying, harassment and intimidation from his manager at work. The employer was held vicariously liable for this conduct under the Protection from Harassment Act 1997. This decision is of a pattern with Lister v Helsey Hall and Mattis v Pollock.

Vicarious liability for transferred employees

Viasystems v Thermal Transfer and others [2005] EWCA Civ 1151 [2006] 2 WLR 428

A negligent workman employed by a general employer had been lent or transferred temporarily to another employer for a particular subcontract for which the general employer supplied labour including the negligent workman to the subcontractor. The question was who was entitled to exercise control and the Court of Appeal held that it is possible for more than one employer to have vicarious liability for one negligent act and where as here there was dual control the liability was apportioned equally under the 1978 Act.

Hawley v Luminar Leisure [2006] EWCA Civ 18 [2006] PIQR P211

A case of injury caused by a nightclub doorman. Dual vicarious liability was contended for but the burden of showing that responsibility shifted from the general to the temporary employer is heavy. Here the control exercised by the club, the 'temporary employer', was sufficient to impose vicarious liability on the club. The general employer had no control and was not vicariouslyliable.

Causation

Chapter 3B Material Contribution to causation

It is a characteristic of personal injury law that many claims are based not so much on the infliction of harm as on a failure to prevent accidental harm. In such cases, the court will often infer that a precaution, if taken, would have prevented the accident. For example if a dangerous machine is unfenced, an injury caused by a hand getting into the working parts would obviously have been prevented by the presence of suitable fencing. But causation may not always be so clear cut, and it is too simple to say that a defendant is liable whenever a negligent failure to take precautions has increased the risk of injury. The claimant has to prove that the injury would probably have been prevented if the defendant had taken a precaution which was negligently omitted.

In Clough v First Choice Holidays [2006] EWCA Civ 15 the Court of Appeal thus held that it is not enough for the claimant to prove that a precaution would have reduced the risk of injury, if the reduction would not have affected the outcome and the injury would probably have occurred anyway. There was a failure to use non-slip paint on the surface of a wall beside a swimming pool in a hotel, and the failure was held to be negligent. However the judge held that on the balance of probabilities the accident would not have been avoided if non-slip paint had been used. The failure did not, therefore, cause or materially contribute to the accident, and the Court of Appeal upheld the dismissal of the claim.

Foreseeability
Chapter 3F The kind of harm

Corr v IBC Vehicles [2006] EWCA Civ 331

A man with no psychiatric history suffered a head injury. He subsequently suffered stress and depression and committed suicide. Although suicide was not foreseeable at the time of the injury, the suicide did not break the chain of causation. The suicide flowed from a condition which was foreseeable. The claim in respect of the death was therefore successful.

Proof and Uncertainty
Chapter 4.A

Burden of Proof

Kiani v Land Rover [2006] EWCA Civ 880

The plausible explanations for a workman's death were either that he accidentally fell into a coolant tank or that he deliberately fell as an act of suicide. Each seemed unlikely but the judge was entitled to find on the evidence that the death was accidental and suicide was less probable.

Thus the judge was entitled to find that on the balance of probabilities an apparently unlikely set of facts had happened, as in Hughes v Lord Advocate [1963] AC 837 and was not obliged to hold that the claimant had failed to discharge the burden of proof as in Rhesa Shipping v Edmunds [1985] 1 WLR 948.

Chapter 4.C

Loss of a chance

It is perhaps worth adding this classic explanation of the principle that an award of damages may be made for future chances by assessing the chance even if it is less than probable, from Lord Diplock in Mallett v McMonagle [1970] AC 166, 176:

"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon it's view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

Loss of a chance in clinical negligence

Gregg v Scott [2005] UKHL 2

As a result of the negligence of his GP, Mr Gregg suffered a nine month delay in the diagnosis and treatment of cancer. Evidence from medical statistics showed that his chances of a cure - that is, survival for 10 years free of disease - had fallen from 42% to 25% as a result. The House of Lords [2005] UKHL 2 (by 3:2) has followed the Court of Appeal [2002] EWCA Civ 1471 CA, [2003] Lloyd's Rep Med 105 in holding that damages cannot be recovered to compensate for this harm.

In the majority, Lord Hoffman and Baroness Hale held that the consequences of the delay had to be decided on the balance of probabilities, a basic rule of the proof of causation of damage. There would be no difficulty about a claim for the increased pain of more extensive treatment because this was a result of the delay which passed the test of probability. The same requirement of proof applies to a claim for reduced expectation of life. From the outset it was probable that Mr Gregg would not survive, and they argue that it is not legitimate in clinical negligence to make a claim for the loss of a small chance in order to circumvent the requirement for proof of causation on the balance of probabilities. This was decided by Hotson v East Berks AHA [1987] AC 750. Lord Phillips supported the decision of the majority but the main thrust of his opinion was to question the interpretation of the expert evidence about statistically probable outcomes, influenced by the cheering news that Mr Gregg had in fact survived to the hearing of the appeal nine years on.

Lord Nicholls and Lord Hope dissented, noting that awards for the loss of a chance are common in personal injury claims to compensate for future risks, and finding it unjust that the law should offer no remedy for a reduction in the chances of survival, a consequence of the doctor's negligence that most people would regard as a real harm. The difficulty of assessment should not be a reason for disallowing the claim in principle.

As a result of this decision, where negligence in clinical treatment results in a poorer outcome for the patient, the facts are to be decided on the balance of probabilities. Mr Gregg was unable to recover for a reduction in his chances of a cure when the chances of surviving for 10 years were always less than 50%.

The outcome is surprising. The law allows an award for the loss of a chance of less than 50% in other contexts, for example where a solicitor's negligence results in the loss of a cause of action with less than a 50% prospect of success. There are established grounds to claim for a reduction in expectation of life and a claim for the 'lost years'. There is an established common law rule for deciding the consequences of an injury: past facts must be decided on the balance of probabilities but future facts are decided by an assessment of the chance, often less than 50%, that they will happen, and the damages are discounted to value the chance: Davies v Taylor [1974] AC 207.

Effect of contributory negligence
Chapter 5.A

Contributory negligence; principles of damages

Sowden v Crookdale [2004] EWCA Civ 1370

Contributory negligence is to be ignored in the assessment of damages. Where the likely impact of contributory negligence means that the claimant may not be able to afford to incur an expense that would have been reasonable on full liability, the defendant cannot rely on this. The terms of the Act mean that damages should be assessed on the basis of full liability and the reduction then should be applied to the full liability award. This is consistent with the rule that the court is not concerned with the way that the claimant's damages will be spent after the award has been made.

Willing acceptance of risk
Chapter 6.A

Violent and deliberate injury

Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844

Teenage friends engaged in horseplay throwing bark chippings at each other, and the claimant was hit in the eye sustaining a significant injury. There was no intention to cause harm. The throwing had been in accordance with the tacit understanding of the participants. There is an apt analogy with the risks of organised sport. To prove a breach of the duty of care required recklessness or a very high degree of carelessness. The claimant had consented to the risk of being struck by the bark, provided it was thrown within the understandings or conventions of the game. No liability.

Employers' Liability
Chapter 9.C

Work Equipment Regulations

Ball v Street [2005] EWCA Civ 76

A farmer was injured by the failure of a component in a machine. He had hired the defendant and the defendant's machine but on this occasion the defendant was not present and the claimant was using the machine himself within the terms of the agreement. The Court of Appeal held that the claimant was sufficiently in control of the machine for the Work Equipment regulations to apply, and confirmed that these regulations provide for absolute liability once a defect has been proved, distinguishing the more restricted approach of Fytch v Wincanton under the Protective Equipment regulations.

PRP Architects v Precious Reid [2006] EWCA Civ 1119

An employee leaving work at the end of the day using a defective lift in the common part of a shared office building was using "work equipment" and was using the lift "at work" so that the Work Equipment Regulations applied.

There is an interesting article on Hammond by Nigel Tomkins at [2006] JPIL 112.

Workplace Regulations

Burgess v Plymouth City Council [2005] EWCA Civ 1659

A school cleaner tripped over a container for classroom lunchboxes which had not been put away as it should have been. The judge found breach of 12(3) of the Workplace Regs (subject to 50% contributory negligence) but the defendant appealed because the claimant was a cleaner whose job it was to tidy the box away. The Court of Appeal held that the school was liable because the ingredients of a breach were all satisfied.

[Added May 2007]
Paragraph 9.22

Robb v Salamis [2006] UKHL 56

This decision demonstrates the scope and the absolute nature of the duties under the Work Equipment Regulations. The claimant was injured because a movable ladder to his bunk bed was not securely fixed. At first instance, the claim for breach of regulations 4 and 20 failed because the accident was not foreseeable. On appeal the House of Lords held that there was a risk which should have been identified so that ladders were clamped in place: there is an obligation to anticipate situations which might give rise to accidents, which is an absolute and continuing duty extending to every aspect related to an employee's work. The employer was liable, but there was contributory negligence of 50%.

[Added May 2007]
Regulations applying to Construction Sites
Chapter 9. I

There are new Construction (Design and Management) Regulations 2007 SI 2007/320 which revoke and replace the Construction (Design and Management) Regulations 1994 and revoke and re-enact, with modifications, the Construction (Health, Safety and Welfare) Regulations 1996. The new regulations are in force from 6 April 2007.

Employers' Liability
Chapter 9.J

Other Workplace Regulations

The Work at Height Regulations 2005 SI 2005 No 735 come into force on 6 April 2005. The regulations set out new rules of general application governing the safe organisation of work at height and the provision of suitable equipment. The text of the Regulations can be found on the SI website.

The Control of Vibration at Work Regulations 2005, SI 2005 1093, came into force on 6 July 2005.

Tripping hazards
Chapter 10.B

Tripping and slipping

Searson v Brioland [2005] EWCA Civ 55

The Court of Appeal upheld a decision in favour of claimant who had tripped on a 3 cm raised threshold while leaving an hotel. This was an unusual hazard which a visitor might well fail to notice.

Land and Buildings
Chapter 12D

Occupiers' liability to trespassers

Keown v Coventry Healthcare [2006] EWCA Civ 39 [2006] PIQR P288

The claimant was injured while climbing the outside of a fire escape when a trespasser. This was the claimant's own choice to engage in dangerous activity and the injury was not caused by any danger due to the state of the premises. In these circumstances there was no breach of the duty owed under the 1984 Act. The claimant was 11 years old and this might affect the content of a duty where a duty was owed, but it did not affect whether a duty was owed at all.