Personal Injury Brief: latest decisions October 2019

A roundup of recent court decisions raising issues in relation to incidents that really are nobody’s fault, an application to withdraw an admission of liability, whether a tour operator is liable for the criminal acts of hotel employees, the impact of decisions in criminal proceedings and when is a path a highway.

Scottish case: some accidents are simply nobody’s fault

Amy Cockburn v MCE Insurance Company Limited [14.08.19]

A reminder that the onus of proof is on the pursuer (the party bringing the action) to prove their case and that sometimes there are accidents where no blame can be attributable to either party.

On 23 July 2018, the pursuer was driving on a single carriageway road with no central white dividing line. After a sharp bend in the road, a motorcycle approached from the opposite direction and a collision occurred. The pursuer contended that the motorcycle rider lost control whilst travelling at a high speed and that he lost control of the motorcycle, and struck the rear of her vehicle, causing injury. The driver of the motorcycle, Mr Cochrane, alleged that the pursuer had taken the bend too sharply and had encroached onto his side of the road causing him to counter-steer, and because the road conditions were greasy, the motorcycle slide into the side of the pursuer’s vehicle.

The Sheriff was left to decide between two competing accounts of the accident, which were ‘both plausible’ but Mr Cochrane’s account was preferred. As such, the Sheriff was unable to find that Mr Cochrane had failed in his duty to take reasonable care. However, the Sheriff also did not seek to make a positive finding that the pursuer was at fault for the accident and instead stated, "some accidents are simply nobody’s fault".

Contact: Peter Demick

Examination of evidence should be limited on an application to withdraw a liability admission

Newham London Borough Council v Arboleda-Quiceno [31.07.19]

Having found that the defendant's defence had a realistic prospect of success, the master should not have gone on to assess the evidence behind it.

The claimant had injured his knee while playing football on an AstroTurf pitch in the local authority's recreation grounds. He sent a pre-action letter alleging that the injury had occurred due to a hole in the AstroTurf and that there had been a breach of duty of care caused by inadequate inspection and maintenance of the pitches. Liability was initially admitted but after the claimant filed his particulars of claim, the defendant applied to withdraw the admission and to allege fundamentally dishonesty. In refusing the withdrawal, the master considered the fact that while the local authority's defence of fundamental dishonesty had a realistic prospect of success, the evidence supporting it was weak and contained inconsistencies.

On appeal, it was confirmed that whilst the merits of the claim were a relevant factor, there was a limit on the type of examination that should take place at an interlocutory stage. Having found a realistic prospect of success for the defence, the master should have gone no further.

Contact: Vicky Strathern

Tour operator liability case referred to the EU 

X v Kuoni Travel [24.07.19]

The Supreme Court confirmed that the Court of Justice of the European Union needed to consider the issues in dispute before ruling on whether a tour operator will be liable for the criminal acts of hotel employees against hotel guests.

On 8 July 2010, Mr and Mrs X arrived in Sri Lanka for a 15-day package holiday booked through Kuoni Travel Ltd (Kuoni). They stayed at the Club Bentota Hotel (the hotel), where, in the early hours of 18 July 2010, Mrs X was raped and sexually assaulted by an electrician (N) employed by the hotel who she stated was guiding her back to reception.

She sued Kuoni for ‘improper performance’ of the holiday contract she made with them, basing her claim on her contract and on Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 (the Regulations).

Mrs X asserted that N was providing a service pursuant to the holiday contract and that he did not provide that service with reasonable care and skill and that N, as the supplier of that service, could easily foresee that his sexual attack was not a proper performance of his services. In its defence, Kuoni denied the assault constituted a breach of any obligations owed by Kuoni under the Regulations or that it constituted improper performance of any obligation under the contact and that the hotel, not N, was the supplier.

The Supreme Court unanimously decided to seek clarification on the relevant Directive (and thereby the Regulations) as to whether there is scope for such a defence and if so by which criteria the national court should assess whether that defence applies.

Contact: Claire Mulligan

Related item: Tour operator liability case referred to the EU

All incidents must be proved in a claim for multiple actions of alleged abuse

WCC v Steer [15.07.19]

The claimant alleged seven separate incidents of sexual abuse over a three-year period between 1978 and 1981, when she was eight years to eleven years of age. At the criminal proceedings, the defendant was found guilty of two of the incidents and was jailed. The defendant participated in the civil claim as a litigant in person and put in a defence and counterclaim, asserting that all of the allegations were fabricated and being pursued dishonestly. The claimant successfully challenged this and sought to have the defence and counterclaim struck out as an abuse of process.

The court believed that it was inappropriate to assess damages based on the entirety of injuries to just the two incidents on which there had been criminal convictions or to accept what was in effect a summary judgment in relation to the five ‘unproven’ counts. The claimant decided she wished to establish liability for the balance of the allegations, rather than assess damages on just the two convictions. The court, preferring the claimant’s evidence on a balance of probabilities, decided that she had been the subject of five further occasions of abuse and awarded damages based on all seven incidents having been ‘proven’.

Contact: Helen Snowball

When is a path a highway?

Barlow v Wigan [19.06.19]

The High Court has confirmed that a path will be deemed maintainable at public expense if it was a highway at the time of the accident and if it was constructed by a local authority exercising a highway function.

On 21 September 2018, the claimant tripped on an exposed tree root on a path in a public park, sustaining injuries.  The claimant pursued a claim against the highway authority alleging that they owed a duty of care to maintain the pathway. The defendant disagreed, asserting the path was not a highway and as such owed no duty. The path had been constructed by a former district council in the 1930’s and whilst the public had access to the path, it was not clear whether the council intended the path to be a highway. In addition, it was not clear whether the district council that constructed the pathway was a highway authority.

On appeal, the High Court confirmed that the relevant local authority at the time was, amongst other things, a highway authority and that at the time of the accident it was being used, and had been for some time, as a highway and as such, the path was subject to the Act.

Contact: Mandy Williams

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