Personal Injury Brief: latest decisions February 2020
A roundup of recent court decisions raising issues in relation to the wrong treatment of the reasonable practicability test, the recoverability of the cost of alcoholism linked to a psychiatric condition and the erring of a judge’s assessment of damages in a food poisoning case.
Judge wrongly applied the reasonable practicability test
Walsh v CP Hart & Sons [13.01.20]
A judge had erred in dismissing a claim for damages brought by an employee against his employer in respect of injuries suffered after he fell from the back of a works vehicle.
A Work Activity Assessment Form had identified the work as high risk and the claimant alleged that safety measures should have been in place. The judge found the employer had not committed any breach of duty as it would not have been reasonably practicable to implement certain safety measures.
The claimant appealed, submitting the judge wrongly treated the test of reasonable practicability as involving a simple balancing exercise, rather than one in which there needs to be a gross disproportion between the risks involved and the required safety measures needed.
Contact: Paula Garvey
Spending money on alcohol as a result of a psychiatric condition is recoverable
GXG v S [17.12.19]
A young man, who as a child had been subject to a pattern of sexual abuse by his neighbour, claimed damages arising out of the sexual assaults inflicted on him.
The defendant, who had been the claimant's neighbour, had pleaded guilty to various offences and was sentenced to eight years' imprisonment. The claimant issued civil proceedings against him, and the court, having found that he was liable to the claimant, had to determine what damages were recoverable.
It was clear from the medical evidence that the assaults had serious consequences for the claimant. It had affected his relationships and he had also been abusing alcohol and had been dependent on cannabis as a result of the abuse. Part of the claim included past losses, namely the loss of his driving licence and the fact that over the years he had wasted money on alcohol. The court confirmed that if a psychiatric condition caused an individual to spend money on something they would not otherwise have spent it on, such as cigarettes or alcohol, then they could recover these sums.
Contact: Mark Burton
Judge erred in assessment of damages and costs in food poisoning case
Chelfat v Chaudhry's Restaurant [05.11.19]
A judge, when assessing general damages for food poisoning, was found to have made a wholly inaccurate estimate by placing the case into the wrong category in the Judicial College Guidelines. The judge had also erred by applying the two-thirds cap for costs of a litigant in person to the amount of the costs claimed, rather than by reference to a hypothetical legal representative's costs for the same work.
Within a few hours of eating and drinking at the respondent restaurant, the appellant had suffered severe abdominal pain and acid reflux and she continued to have severe symptoms for up to 18 months.
The appellate court confirmed that it would only interfere with a judge's assessment of damages if they had acted on a wrong principle of law, or had made an entirely erroneous estimate of the damages. In this case, the judge had applied a lower category than was typical but failed to give any reason why he may have discounted the claimant’s evidence. The appeal was allowed and the damages increased.
Contact: Paul Bedford
Related item: Personal Injury Brief: latest decisions October 2019