Legal Watch:Personal Injury19th August 2015Issue: 074

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• Civil procedure/admission of liability

• Psychiatric injury/secondary victim

• Credit hire

Civil procedure/admission of liabilityWhere a defendant wishes to resile from an admission of liability made before the commencement of proceedings it must address CPR 14.1A which states:

(3) A person may, by giving notice in writing, withdraw a pre-action admission

(a) before commencement of proceedings, if the person to whom the admission was made agrees;

(b) after commencement of proceedings, if all parties to the proceedings consent or with the permission of the court.

(4) After commencement of proceedings–

(a) any party may apply for judgment on the pre-action admission; and

(b) the party who made the pre-action admission may apply to withdraw it.

(5) An application to withdraw a pre-action admission or to enter judgment on such an admission –

(a) must be made in accordance with Part 23;

(b) may be made as a cross-application.

In Cavell v Transport for London (2015) EWHC 2283 (QB) the defendant applied to resile from such an admission. The case also looks at the impact of an admission of liability on a party’s ability to seek contribution or indemnity from a third party.

In October 2011, the claimant, a cyclist, had fallen from his bicycle at the point where a cycle path joined a bus lane. He told a paramedic that he fell “due to uneven ground”. In September 2012, he emailed the defendant alleging that a “pothole” had caused the accident. He included a clear digital image of the scene with the defect marked. A claims handlingfirminstructedbythedefendantreviewedthecaseand, in August 2013, issued a denial of liability on the basis that inspection records for the site indicated regular inspection

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withnodefects identified.Theclaimantsent images fromJuly 2013 showing that the defect was still present, which he claimed undermined the inspection records.

A second claims handler reviewed the case and, in December, concluded that the lack of contemporaneous evidenceoftheroad’sconditionmadeitdifficulttoassesswhether the inspections had been carried out reasonably. In November 2013, an employee of the defendant repaired the relevant part of the road, describing the fault as a “pothole in bus lane”. The claimant was unaware of this development.

In March 2014, the claimant’s solicitors contacted the claims handlingfirm,whichissuedanadmissionof liabilitywithin24 hours. The issues to be determined in the defendant’s application were whether (i) the admission should not have been made because there was no contemporaneous evidence to support it; (ii) if the admission was not withdrawn, would the defendant be able to claim any contribution or indemnity from the contractor responsible for inspection and repair of the highway.

Dismissing the application, the High Court judge held that the claimant’s digital images were a contemporaneous record of the defect. The inspection records would carry more weight if the defect apparent in September 2012 had not still been present in November 2013, when it was assessed by the defendant as a pothole. While the claimant had not informed medical professionals of the pothole, he hadtoldthefirstpersontotreathimatthesceneaboutit.

‘It would not be in the interest of the administration of justice to permit withdrawal of an admission made...’The court had to consider the factors listed in CPR PD 14 - 7.2, including whether new evidence had come to light that was not available at the time the admission was made,

the conduct of the parties, and whether withdrawal was in the interests of the administration of justice. No explanation hadbeenofferedfortheerroneousadmission.Theclaimshandlingfirmwasexperiencedinthetypeofclaiminvolved.The initial denial was followed by a lengthy review of that decision and, during that time, repairs were carried out to the road. All the external evidence suggested careful consideration of the available material and a reasoned decision based on that material. There was no new evidence to undermine that proposition. It would not be in the interest of the administration of justice to permit withdrawal of an admissionmadeaftermaturereflectionofaclaimbyhighlycompetent professional advisors without evidence to suggest that it had not been properly made.

Under the Civil Liability (Contribution) Act 1978, the defendant would have to prove the defect, something which the cyclist could assist with. It was therefore not prevented from obtaining a contribution or indemnity if the admission was not withdrawn.

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Psychiatric injury/secondary victimAlthough it is a clinical negligence claim which failed on causation, Owers v Medway NHS Foundation Trust and another (2015) EWHC 2363 (QB) is of wider interest as an example of a claim for psychiatric injury by a secondary victim. There will be many cases where a close relative witnesses a loved one being treated in hospital following trauma.

According to the claimant’s deceased wife, she had firstawoken at 05.50 on 14 March 2010 and had then returned to bed and slept until 07.00. At that time, she got up feeling unwell. She felt her right arm growing weaker and experienceddifficultieswithherspeech.Shewasadmittedto hospital with a suspected stroke. At 08.20, a history was taken by a triage nurse. She was then returned to A&E, where shewas seenby a senior houseofficer (SHO).Hediscussed the claimant’s wife’s case with another doctor, as he was unsure of the cause of her condition. At 09.40 the wife’s condition deteriorated.

The SHO accepted that his failure to re-examine her at that time was a significant failure on his part. The claimant’swife was discharged from hospital at 11.36, which the firstdefendant acceptedwasnegligent.Due to thewife’sdeteriorating condition, the claimant drove her to another hospital.Shewasdiagnosedashavingsufferedararetypeof stroke. She died in August 2014.

It was common ground that, in the case of strokes, thrombolysis could be used to break up the blood clot if administered within three hours of the onset of symptoms. According to the first defendant, however, the claimant’swife was suffering from stroke symptoms at the time ofawakening and was therefore excluded from thrombolysis treatment on the basis that the three-hour window might have passed. There was no record of the 05.50 incident in the wife’s hospital notes. However, she claimed that the 05.50 incident showed that she was symptom-free at that time so that the onset of symptoms could not have occurred until later, making her a candidate for thrombolysis. The

first defendant accepted that aspirin should have beenprescribed at some point between 10.40 and 11.00, but the wife claimed that that should have been done before 09.40. The claim brought by the claimant on his own behalf was based on symptoms of post-traumatic stress disorder that he exhibited after witnessing the events after 09.40.

Dismissing both claims, the High Court judge held that on the balance of probabilities, the 05.50 incident had not occurred. The claimant’s wife had awoken with some right-sided heaviness and had experienced ataxia immediately aftergettingoutofbed.Accordingly,theneurologicaldeficitprobably existed before she awoke and there was no basis on which she should have been thrombolysed.

There had clearly been procedural failings, in particular as to whose responsibility it was to make a diagnosis and to whomapatientshouldbereferredinadifficultcasesuchastheinstantonewheretherewerefluctuatingsymptomsand a stroke could not be excluded. On the balance of probabilities, the nurse’s training should have been such that she did not refer the patient back to an SHO on the findingsofherexamination.Theclaimant’swifeshouldhavebeen seen urgently after 08.20 by a more senior doctor.

However, since a stroke diagnosis would probably not havebeenmadeatthatstage,thefirstdefendantwasnotnegligent in failing to prescribe aspirin before the 09.40 deterioration, but shortly thereafter. On the expert evidence it was not possible to conclude that, had the wife been prescribed aspirin at any time, she would have had a better outcome. Therefore, it had not been demonstrated that the first defendant’s breach of duty in failing to treat herpromptly with aspirin had caused or materially contributed to her eventual outcome.

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‘…there was no sudden appreciation of a “horrifying event” by objective standards…’Theclaimanthadaclosetieof loveandaffectionwithhiswife, was close to the incident in time and space and had directly perceived the incident. What he had witnessed from 09.40 was very distressing, consisting of the failure properly to diagnose and treat and the negligent discharge of his wife who was, by then, very seriously ill. However, there was no sudden appreciation of a “horrifying event” by objective standards and by reference to persons of ordinary susceptibility; nor were those events wholly exceptional. It followed that the claimant’s claim as a secondary victim did not succeed.

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Credit hireAlthough it is not directly related to personal injury claims, those involved in credit hire cases may be interested in Accident Exchange Ltd v George-Broom and others (2015) EWHC 2205 (Admin).

The claimant was a car hire company which provided vehicles to personswhose carswere off the road after aroadtrafficaccident.Thecostofhirewasusuallybornebyinsurers, who often challenged the charge that was made. The four defendants were employed as rate surveyors by a company which gave expert evidence on behalf of defendant insurers seeking to reduce such claims. The claimant brought proceedings against the defendants for contempt of court on the basis that they had given fraudulent evidence of having checked the spot rates for comparable vehicles within the relevant locality to demonstrate that the claimant’schargeswere inflated,whereas in factnosuchchecks had been made. The claimant relied on evidence which it claimed established wide-ranging dishonesty and fraud, consisting of records of telephone calls, some of which might have been material to their case but had been deleted by the holder after 185 days. A police investigation concluded that the claimant’s allegations were not made out and that there was no basis for a criminal prosecution.

Pursuant to the Practice Direction to CPR 81, the defendants claimed that the proceedings against them had no real prospect of success since the evidence of falsity was based on hearsay or there was no proper evidence in support of the allegations.

They argued that the only admissible evidence in relation to any specific allegationmade by the claimantwas thatwhich strictly and directly related to that allegation, and that broader evidence relating to events at the company at which they were employed was not admissible. They alsosubmittedthattherewasinsufficientpublicinterestinpursuing the proceedings.

Refusing the applications, the High Court judges held that for the purposes of the test in PD81- 16, it was not enough to point to aspects of the claimant’s evidence which were of doubtful weight or questionable strength. The defendants’ contention as to the admissibility of evidence was wholly unrealistic and contrary to principle. There was much force in the proposition that the court had to consider matters as a whole, not look at each allegation in isolation. The instant case was not remotely one in which the contempt claim shouldbestruckoutforinsufficiencyofevidence.

Although the defendants had not gone so far as to submit that the contempt proceedings ought to have been heard within the 185-day period during which the telephone records were held if they were not to fail for want of a fair trial, that was the corollary of their reliance on that material. The only basis on which delay might support a strike-out wouldbethatafairtrialwasimpossible;itwasnotsufficientmerely to show that the passage of time had caused some difficultiesforaparty.

Whereas itwasthefirstdutyof thepoliceandtheCrownProsecution Service to investigate crime and bring criminals tojustice,itwasthespecificdutyofthecourttoprotecttheintegrityofthejusticeprocess.Thoseweredifferent,albeitoverlapping, aspects of the public interest. It appeared that the decision not to prosecute the company or the defendants was taken on the footing that the relevant evidential test had not been met. That test had no application to the instant proceedings; therefore, the question whether a prosecution would be in the public interest was never arrived at. As for the position in the instant court, it appeared on the face of it that therewas a substantial case to the effect that thecourse of justice had been comprehensively perverted throughout the country and that the defendants had played a part in that. There was therefore no basis on which the contempt claims should be struck out.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.com

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