DOLMANS INSURANCE BULLETIN

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1 DOLMANS INSURANCE BULLETIN Welcome to the July 2017 edition of the Dolmans Insurance Bulletin In this issue we cover: REPORT ON Beware of the tree! - Gareth Eveson v Rhondda Cynon Taf County Borough Council RECENT CASE UPDATE Civil procedure - civil evidence - Case Management Orders Costs Budgets Negligence - landlord and tenant - Defective Premises Act Part 36 - costs Personal injury - duty of care - highway maintenance - occupiers liability Relief from sanctions If there are any items you would like us to examine, or if you would like to include a comment on these pages, please the editor, Justin Harris, Partner, at justinh@dolmans.co.uk 1

2 DOLMANS REPORT ON BEWARE OF THE TREE! Gareth Eveson v Rhondda Cynon Taf County Borough Council This claim arose following an alleged tripping accident on a tree root situated within an adopted footway. The Claimant alleged that on 21 November 2014, his left foot struck against exposed tree roots which had erupted through the surface of the highway, causing him to fall and sustain injury. Following service of Court proceedings, Dolmans were instructed to act on behalf of the Defendant Local Authority. The Claimant was immediately asked to identify precisely on a photograph where he was allegedly caused to trip. In response, his solicitors provided a photograph (below), and confirmed that the Claimant himself marked the defect which caused his accident with a black cross. 2

3 DOLMANS REPORT ON The claim was mainly defended on the basis that the alleged defect did not constitute a breach of the Defendant s section 41 duty under the Highways Act 1980, although the Claimant was also put to proof as to factual and medical causation and that he was not contributory negligent. Whilst matters relating to a section 58 defence were also pleaded, in reality, if the Court found that the alleged defect did constitute a breach of duty, it was highly unlikely that the Defendant Authority could successfully rely upon this defence, given the Defendant Authority had taken no steps to remedy the alleged defect, either as a result of pre-accident inspections or following the post claim investigations. The matter proceeded to Trial on 15 December At the hearing, the Claimant s Counsel sought to persuade the Court that the area did, in fact, constitute a breach of the Authority s section 41 duty and argued that given the narrow width of the footway and the presence of leaves (shown in the photograph) which more likely than not would have been present at the time of the Claimant s alleged accident in November pedestrians would have been forced to walk within the roots of the tree. It was also argued that given that the tree was not surrounded by a delineated tree pit, the area containing the roots formed part of the highway and, therefore, the dangerousness test should be applied to this area as it did to the remainder of the footway. The defence argued that the tree roots within the tree pit area did not form part of the highway and, therefore, there had been no failure on the part of the Authority to repair or maintain that area under section 41 as this duty only related to the fabric of the highway. In her Judgement, the District Judge accepted that the accident occurred as alleged. She considered that the main issue of the case was whether the area/alleged defect constituted a foreseeable danger. Whilst she accepted that the tree roots could have posed a tripping hazard as they protruded across into part of the footway, she found there was, in fact, sufficient room for the Claimant to walk around the tree rather than walking over the roots and, accordingly, the area in question did not constitute a real source of danger for the purposes of section 41. The claim was, therefore, dismissed. 3

4 DOLMANS REPORT ON The Claimant subsequently applied for permission to appeal, primarily on the basis that the District Judge despite finding that the roots amounted to a trip hazard failed to properly apply the test under section 41 and that the finding that there was a feasible route around the tree was a factor which related to contributory negligence and not section 41. In dismissing the Claimant s paper Application, His Honour Judge Keyser QC found that the District Judge was right to dismiss the claim. The tree roots were a hazard only in the relatively trivial sense that anything other than a plain surface is a hazard. Roots at the base of a tree that stands squarely in the pavement are not generally dangerous and certainly the roots shown in the photographs were unexceptional and not dangerous. He disagreed with the Claimant s submissions that in saying that the Claimant could walk around the tree, the District Judge was introducing a factor relating to contributory negligence only. His Honour Judge Keyser QC instead found that the roots were at the base of an obvious tree and did not encroach the full width of the footway, and the District Judge was entitled to regard the ease of passing the tree and roots as relevant to the question whether the highway was dangerous. Irrespective of this, the District Judge had justified her conclusion that the highway was not dangerous and, therefore, the appeal did not have real prospects of success. Whilst each case will, of course, turn on its own facts, it is hoped that this case and the comments of His Honour Judge Keyser QC will provide some guidance to Local Authorities faced with claims of similar facts. Certainly, it will be important to force the Claimant to pin his or her colours to the mast as the Defendant did here during the early stages of the litigated claim in terms of where precisely he/ she tripped and/or whether this was within the roots of the highway tree and/or whether there was sufficient room at that point to have walked around the tree. Teleri Evans Associate Dolmans Solicitors For further information regarding this article, please contact Teleri Evans at telerie@dolmans.co.uk or visit our website at 4

5 Civil Procedure - Civil Evidence - Case Management Orders Daniel Alfredo Condori Vilca & Others v (1) Xstrata Ltd (2) Compania Minera Antapaccay SA (formerly Xstrata Tintaya SA) [2017] EWHC 1582 (QB) The Court had to decide whether to impose a condition on the Defendant companies Application to extend time to serve their expert evidence in a personal injury claim. Within the proceedings, both parties were ordered to serve evidence from experts in Peruvian law. Early in the proceedings, the Defendants replaced their first expert with a more experienced expert when they realised the case was unlikely to settle before Trial. However, the second expert had to withdraw due to ill health. The Defendants applied for an extension of time to instruct a new expert. The Claimants submitted that, according to case law, the Court should grant the Application only on condition that the Defendants disclose the reports of their first and second experts. The Court held that the first question for the Court was whether the circumstances gave rise to any power to impose a condition; Beck v Ministry of Defence [2003] EWCA Civ 1043, Vasiliou v Hajgeorgiou [2005] EWCA Civ 236 and Edwards-Tubb v JD Weatherspoon Plc [2011] EWCA Civ 136 followed. If the Court determined that it had case management powers, the second question was how those powers should be exercised on the facts of the particular case. The authorities had consistently said that the object of imposing a condition that reports of previous experts should be disclosed was to prevent expert shopping and to ensure that the Court had full information. However, there was no rule of practice or procedure requiring that the condition be imposed if those two factors were not in issue and there was no other good reason to impose it. Further, where the two factors were in issue, the Court would usually impose the condition, but it was not inevitable. It was held that the circumstances of this case did give rise to the Court s discretionary case management powers, which included the power to order that the substance of the opinion of prior experts be disclosed as a condition of granting the extension. However, the Court held that the condition should not be imposed in the instant case. There was no sound basis for the concern about undesirable expert shopping. The second expert would have been the Defendants expert had it not been for her ill health. The Defendants had also coherently explained why they had changed from the first to the second expert. There was also no sound basis for any suspicion of abuse of process. The circumstances in which the new expert was to be instructed did not suggest any substantial reason for thinking that the Court and the Claimants would not have full information. Finally, there was no other good reason for imposing the condition. 5

6 Costs Budgets Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 792 The Claimant, H, brought clinical negligence proceedings against the Defendant Trust. The Claim Form and issue fee were sent to the Court via the DX undercover of a letter dated 27 March The documents were stamped as received by the Court on 2 April 2013 and were formally issued on 9 April The claim was limited to 50,000. At a Costs Management Conference on 18 August 2014, the parties were given permission to rely upon their updated Costs Budgets as presented and modified at the hearing. The total amount of H s costs in her budget was in the region of 197,000, of which approximately 108,000 related to incurred costs. The claim settled shortly before trial. H served a Bill of Costs in the sum of 467,000, including additional liabilities. The Trust appealed against a decision made upon Detailed Assessment. At the relevant time CPR 3.18 provided as follows: The Court of Appeal was required to determine the following issues: (1) Where a Costs Management Order ( CMO ) approving a Costs Budget has been made in the course of civil proceedings, is a Costs Judge on a subsequent Detailed Assessment precluded from going below the budgeted amount unless satisfied that there is good reason for doing so? (2) With regard to costs incurred prior to the budget ( incurred costs ), whether there is or is not a like requirement of good reason if a Costs Judge on a subsequent Detailed Assessment is to depart from the amount put forward at the relevant Costs Management Hearing? (3) When is, for the purposes of the transitional provisions relating to proportionality contained in CPR 44.3 (7), a case to be treated as commenced? In any case where a Costs Management Order has been made, when assessing costs on the standard basis, the Court will (a) have regard to the receiving party s last approved or agreed budget for each phase of the proceedings; (b) not depart from such approved or agreed budget unless satisfied that there is good reason to do so. 6

7 The Court of Appeal held that: (1) Where there was a proposed departure from a Costs Budget, be it upwards or downwards, the Court on a Detailed Assessment could sanction such a departure only if satisfied that there was good reason for doing so. That was the natural and ordinary meaning of the words used in CPR 3.18(b); Merrix v Heart of England NHS Foundation Trust [2017] approved. (2) CPR 3.18(b) relates to a departure from "the approved or agreed budget". The costs incurred before the date of the budget were never agreed in this case. Nor were they ever "approved" by the CMO. On the contrary, the focus of a Judge making a CMO is on estimating the costs reasonably and proportionately to be incurred in the future. Whilst the Court may have regard to incurred costs when considering estimated costs, paragraph 7.4 of PD 3E is quite specific : as part of the costs management process, the Court may not approve costs incurred before the date of the budget Costs Management Conference. What it can do is record in the CMO its comments (if any) on such costs : which are then to be taken into account when considering reasonableness and proportionality : a Direction now enshrined in the amended CPR 3.15 (4) and CPR 3.18 (c) with effect from 1 April Incurred costs are not as such within the ambit of CPR 3.18 (in its unamended form) at all. Accordingly, such incurred costs are to be the subject of Detailed Assessment in the usual way, without any added requirement of "good reason" for departure from the approved budget. (3) The issue of whether this case was commenced", for the purposes of CPR 44.3 (7)(a), before or after 1 April 2013, was of potential practical importance to the parties because if the case was commenced before 1 April 2013, then it was common ground that the proportionality exercise to be conducted (cf. Lownds v Home Office [2002]) is likely to be more favourable in outcome to H as the receiving party than that arising under the current CPR 44. The general position, under the Civil Procedure Rules, is that proceedings are started when the Court issues a Claim Form at the request of the claimant : (CPR 7.2 (1)). A Claim Form is issued on the date entered on the form by the Court : (CPR 7.2 (2)). In this case that was 9 April Accordingly, the proportionality provisions of CPR 44 (2)(a) and (5) apply. The Court of Appeal dismissed the Appeal on the first ground advanced, allowed it on the second and third grounds advanced, and remitted the matter to the Costs Judge for further assessment on that basis. 7

8 Negligence - Landlord and Tenant - Defective Premises Act Megan Louise Dodd (Widow & Executrix of the Estate of Paul James Dodd, Deceased) v Raebarn Estates Ltd & 5 Others [2017] EWCA Civ 439 The freeholder of a building had leased part of the building to a head lease, a developer which had reconfigured that part of the building and granted underleases of individual flats. The head lessee had replaced two existing staircases with a single new one. Contrary to plans submitted as part of the planning permission application (which was granted), the new staircase did not have a handrail and the stairs were steeper and shallower than shown on the plans. The Claimant s husband fell down the stairs when visiting friends in one of the flats and died from his injuries. The lack of handrail and the steepness of the stairs amounted to a breach of building regulations. Clause 3(3) of the head lease required the head lessee to keep the premises in good and substantial repair, including the remedying of any inherent defect to the premises. The Claimant relied on the freeholder s right of entry to repair if the head lessee breached clause 3 (3) to claim that the freeholder was liable for her husband s injuries under the Defective Premises Act. However, the freeholder obtained Summary Judgment on the ground that the Claimant s claim had no real prospect of success. The Claimant appealed, submitting that when the head lessee removed the original staircase, it breached Clause 3(3) of the head lease by causing damage to the physical condition of the building. The Court held that the phrase maintenance or repair in Section 4 of the Defective Premises Act was to be interpreted according to the meaning that it had in the general law of landlord and tenant. The scope of the duty to repair was no wider than that of the covenant to repair owed by the freeholder. It was also clear that a duty to repair could not be equated with a duty to make safe; Alker v Collingwood Housing Association [2007] EWCA Civ 343. The head lease permitted the head lessee to make alterations with the freeholder s consent. In those circumstances, the removal of the old staircase could not possibly amount to a breach of clause 3(3) and the right to enter could not have been triggered. If, as the freeholder alleged, the new staircase never had a handrail, there had been no subsequent damage to or deterioration in the fabric of the staircase such as to give rise to an obligation to repair it and the claim under Section 4(4) would have to fail. The Judge rejected the alternative hypothesis that the new staircase originally had a handrail which was subsequently removed. 8

9 However, even if the Judge had been wrong in that respect, it would not have made any difference if the handrail had been removed at some time after the new staircase was installed. The test of functionality was not the correct one. Part of a building might function inadequately, but it did not follow that it was in disrepair or that there was a relevant defect for the purposes of Section 4(3) Defective Premises Act. Appeal dismissed. Part 36 - Costs Briggs v CEF Holdings Ltd Lawtel Court of Appeal The Claimant, B, issued proceedings in January 2012 for damages for an injury to his foot suffered whilst working for the Defendant, CEF. B relied upon an Orthopaedic Surgeon s report which gave a poor prognosis. CEF made a Part 36 offer to settle the whole claim in the sum of 50,000. The 21 day relevant period for acceptance of CEF s offer expired on 9 October B did not accept or reject the offer. In May 2013, a stay of proceedings was granted and B underwent foot surgery. The stay was lifted in April 2014 and B increased his claim to 248,000. In October 2014, B served a report from a new Orthopaedic Surgeon which provided a slightly better prognosis than the original report. However, a joint report between this expert and CEF s expert was far more favourable and stated that B would be able to work until retirement age. In June 2015, B accepted CEF s Part 36 offer. B successfully applied for an Order that CEF pay his costs up to 30 October 2014 on the basis that it would be unjust to apply the usual costs rule (ie that B pay CEF s costs from 9 October 2012, being the expiry of the 21 day relevant period) because the injury had not been resolved and the prognosis had been uncertain until the October 2014 orthopaedic report. CEF appealed. The Court of Appeal allowed the Appeal. Where a Part 36 offer was not accepted in time, Part 36 shifted the costs risk onto the offeree, and it was important not to undermine that purpose. It was up to B to show that applying the usual costs rule in Part 36 would cause injustice. The fact that there had been uncertainty regarding B s prognosis was part of the usual risks of litigation. B s decision to accept the offer had not come following his second medical report or the joint report. B had carried on with his case. The stay of proceedings was not relevant. It had followed some time after the offer and B had greatly increased his claim after the stay was lifted. The Court was unable to detect anything rendering the usual costs order unjust. The first instance Judge s decision was wrong in principle by failing to give effect to the purpose of Part 36 and could not stand. 9

10 Personal Injury - Duty of Care - Highway Maintenance - Occupiers Liability Paul Singh v City of Cardiff Council [2017] EWHC 1499 (QB) The Claimant had been walking home in the early hours of the morning along a footpath that led to a footbridge over a brook. The Claimant sustained severe injuries when he slipped into the brook and he remained in the brook for about 8 hours before being found the following morning. After being recovered, the Claimant was found to be two-and-a-half times the legal limit for driving. The Defendant accepted that the footpath was a highway maintainable at the public expense. However, the Claimant had not tripped or slipped, but had voluntarily stepped off the footpath onto adjacent ground that was not part of the highway and had lost his footing on that ground. His claim for breach of duty under the Highways Act 1980 failed because the injury had not been caused by any defect in the footpath. Under Section 2(2) of the Occupiers Liability Act 1957, the Defendant was required to take such care as was reasonable to see that a visitor would be reasonably safe in using the premises. The Defendant owned the land on either side of the footpath and the land upon which the footpath was constructed. On the evidence, the purposes for which persons were invited or permitted to be present on the adjacent land was for purposes reasonably incidental to the use of the footpath. There was no suggestion that persons were invited or permitted to be present on the adjacent land for any other purpose. It was held that the Claimant s injuries were not the result of any failure by the Defendant to take reasonable care to ensure that he was reasonably safe in using the land adjacent to the footpath and there was, therefore, no breach of the duty imposed by Section 2(2). On the facts of the case, the Defendant had not created a hazard or introduced a danger by creating a footpath and footbridge. There was no failure to take reasonable care on the Defendant s part by constructing the footpath and not preventing persons from going from the footpath onto the adjacent land. There was no breach of duty on the part of the Defendant for failing to place fencing where the land adjacent to the footpath led to the slope. It was not the creation of the footpath which caused the injury. The Claimant chose to leave the footpath and enter onto the adjacent land. The claim based on common negligence, therefore, also failed. Had the Claimant established liability, he would have been found to have been 70% contributory negligent. 10

11 Relief from Sanctions Griffith v Gourgey & Others [2017] EWCA Civ 926 The Petitioners, P, were bringing an Application for unfair prejudice. They made a request for further information in respect of the Respondents, R, Defences. R objected to the requests on the basis that they were unreasonable and disproportionate. P made an Application for R to reply. The Application was disposed of by a Consent Order which required R to provide a full response to the Part 18 Request by 21 March R failed to respond and an Unless Order was made requiring R to file and serve their response by 22 April 2014, failing which their Defences would be struck out. R filed and served a response. P considered the response inadequate and made an Application for Directions on the basis that R s Defences stood struck out for failure to comply with the Unless Order. R cross-applied for relief from sanctions. The Judge hearing the Applications, Mr Monty QC, found that R s response was deficient, but granted relief from sanctions on strict conditions, including that R would serve a full and complete response to the Part 18 Request by 4 December On 4 December 2014, R served its purported full and complete response. P again took issue with adequacy of the response and applied, again, to the Court on the basis that the Defences stood struck out. R made a further Application for relief from sanctions. The Judge hearing these Applications found that the further response was not a full and complete response. Therefore, the conditions imposed in the Order of Mr Monty QC had not been complied with and the Defences remained struck out as from 22 April The Judge refused R s Application for relief from sanctions on the basis that there had been no material change of circumstances since the Order made by Mr Monty QC. R appealed submitting that there was no requirement in CPR 3.9(1) for there to be a material change in circumstances between one Application for relief and another. The Court of Appeal dismissed R s Appeal. The Order of Mr Monty QC did not impose any new or different sanction from the Unless Order. The only sanction that R could seek relief from was that imposed in the Unless Order. R had conditionally achieved relief before Mr Monty QC, but the condition had not been fulfilled. A party who had already made one Application for relief from sanctions had to show a material change of circumstances before he could make a second such Application. There had been no material change of circumstances in this case. For further information on any of the above cases, please contact: Amanda Evans at amandae@dolmans.co.uk or Judith Blades at judithb@dolmans.co.uk 11

12 DOLMANS TRAINING OPPORTUNITIES At Dolmans, we want to ensure that you are kept informed and up-to-date about any changes and developments in the law. To assist you in this, we can offer a whole range of training seminars which are aimed at Local Authorities, their Brokers, Claims Handlers and Insurers. All seminars will be tailored to make sure that they cover the points relevant to your needs. Seminars we can offer include: Apportionment in HAVS cases Bullying, harassment, intimidation and victimisation in the workplace personal injury claims Conditional Fee Agreements and costs issues Corporate manslaughter Data Protection Defending claims the approach to risk management Display Screen Regulations duties on employers Employers liability update Employers liability claims investigation for managers and supervisors Flooding and drainage duties and powers of landowners and Local Authorities for drainage under the Land Drainage Act Common law rights and duties of landowners in respect of drainage Flooding and drainage duties and powers of Highway Authorities for drainage and flooding under the Highways Act Consideration of case law relating to the civil liabilities of the Highway Authority in respect of highway waters Highways training Housing disrepair claims Industrial disease for Defendants The Jackson Reforms (to include : costs budgeting; disclosure of funding arrangements; disclosure of medical records; non party costs orders; part 36/Calderbank offers; qualified one way costs shifting (QWOCS); strikeout/ fundamental dishonesty/fraud; 10% increase in General Damages) Liability of Local Education Authority for accidents involving children Ministry of Justice reforms Pre-action protocol in relation to occupational disease claims overview and tactics Public liability claims update If you would like any further information in relation to any of our training seminars, or wish to have an informal chat regarding any of the above, please contact our Training Partner, Melanie Standley at melanies@dolmans.co.uk 12