Personal Injury Brief: latest decisions March 2019
A roundup of recent court decisions raising issues in relation to childhood abuse trials, unidentified drivers, an EL claim following a terrorist attack, the ability to adduce evidence in relation to life expectancy and concerns over the security of periodical payments against the backdrop of Brexit.
Childhood abuse trial proceeds without the defendant in attendance
KD v Gaidford [20.02.19]
In February 2000, the claimant, who was 15 years old, made an allegation of sexual assault against the defendant. At the time, the police had declined to take further action due to a lack of evidence, but reopened the investigation in 2012. In 2013, the defendant was convicted of 28 sexual offences in respect of ten complainants. Three counts on the indictment related to the claimant’s assault in 2000. The defendant was sentenced to 20 years’ imprisonment.
In July 2016, the claimant commenced civil proceedings against the defendant, claiming damages for personal injury and financial loss. The claim was made outside of limitation and the defendant would not be attending the trial but the court agreed for the matter to proceed to a hearing.
In coming to their decision, the court confirmed that the defendant had full knowledge of the trial and of his right to be present for the purpose of cross-examination, but had taken no practical steps to arrange to attend and his application for an adjournment had failed. In addition, the case had been listed for over a year and limitation was in issue – all of which determined that the balance fell squarely in favour of proceeding with the trial. The court also exercised its discretion in setting aside the three-year limitation period as the claimant initially felt that no one had believed him when he first reported it and following the criminal trial, his mental health had deteriorated with the claimant seeking legal advice on feeling better.
Contact: Helen Snowball
Good news as it is confirmed claims cannot be made against an unidentified driver
Cameron v Liverpool Insurance [20.02.19]
The Supreme Court’s long-awaited judgment constitutes a triumph for insurers, as it now appears difficult for a claimant to sue an unidentified defendant following a ‘hit and run’ road traffic accident. In this case, once established that the claimant could identify the car but not the driver, the claimant applied to have her case amended by substituting the first defendant to ‘the person unknown driving the vehicle’.
The district judge dismissed her application and granted summary judgment in favour of the insurer but the Court of Appeal reversed that decision. The Supreme Court however reverted to the original decision. In reaching their conclusion, the court confirmed that the description did not identify anyone and as such, service on the driver would be impossible, breaching the fundamental principle that a person could not be made subject to the court’s jurisdiction without having notice of the proceedings. The court further noted that the MIB untraced drivers scheme was the correct recourse for such a case.
Contact: Mark Walsh
Related item: Absolute certainty or more challenges to come?
Balancing act between open justice and protection for children
Correa v BP PLC [08.02.19]
The claimants were dependants of two people who were unlawfully killed by terrorists in an attack during the course of their employment at an Algerian gas production facility in 2013. The claimants sought damages under the Fatal Accidents Act 1976 against the employers for failing to properly assess and manage the alleged foreseeable risk of a terrorist attack. The defendants denied all the allegations.
Before trial, the parties came to a settlement but needed court approval on behalf of the claimants who were children. The issue before the High Court was whether any part of the settlement should be made public.
The court concluded that had all the claimants been adults, they could have settled without the agreement being aired in court. However, whilst it was important to protect privacy as far as possible, approval hearings were not outside of the scope of open justice and there was a legitimate public interest in the claims. Therefore, it was right that the approval hearing should happen in open court, but that the settlement terms should remain confidential.
Contact: Greg Woods
Court gives permission to adduce life expectancy evidence
Mays v Drive Force (UK) Ltd [04.01.19]
The court allowed the parties to adduce expert evidence on the claimant’s life expectancy because the claimant, who was claiming substantial damages, also suffered a number of co-morbid conditions.
The claimant had leaned on a defective safety rail at work and fell approximately three metres, causing him to suffer a traumatic brain injury and orthopaedic injuries. The claimant was a smoker who suffered from high blood pressure, obesity and ulcerative colitis. Liability was admitted.
The claimant unsuccessfully resisted the involvement of statistics-based expert evidence to determine life-expectancy. The judge concluded that this kind of expert evidence might assist the trial judge given the number of potential co-morbidities, particularly given that the neurology experts had not felt able to address the impact of them all and, as this was a high-value claim, such evidence might make a significant difference to quantum.
Contact: Rachel Moore
Periodical payments are ‘reasonably secure’ pending Brexit
Young v Bennett and Acromas Insurance [21.12.18]
In this case, a query arose over whether a periodical payment (PP) by a ‘passported’ insurer would remain ‘reasonably secure’ following the unknown future outcome of Brexit. In this case, the claimant was severely injured in a road traffic accident in July 2015 and whilst his claim for damages was settled, there remained concerns over the security of the PP in the agreed order.
In reaffirming the meaning of ‘reasonably secure’, the court took a common sense approach in concluding that PPs are presently reasonably secure and should this change following Brexit, options are available to ensure continued protection of the claimants damages. The court concluded that until the uncertainty as to how Brexit will play out is resolved, PPs are clearly secure in that intervening period.
Contact: Mark Burton