The injury latest

Michael Leyland looks at recent developments in personal injury and clinical negligence law

Two significant developments have taken place within the last year, affecting all personal injury (PI) and clinical negligence lawyers. The Lord Chancellor, Lord Irvine's setting of a 2.5 per cent discount rate on damages instantly affected ongoing PI claims, and the Court of Appeal's decision in Callery Gray (2001) had an impact on any case where after-the-event insurance had been taken out.
A wide range of other PI-related issues has also been dealt with recently at the Royal Courts of Justice. The House of Lords dealt with the issue of vicarious liability in sexual abuse claims, and ensured that Motor Insurers' Bureau (MIB) agreements should comply with European Commission directives, which allow claimants' actions to succeed even when they were aware that a driver was uninsured. The Court of Appeal also ruled on separate issues of negligence: where a disabled child had been born after a failed sterilisation, and where a man was found hanged by his belt in a police cell after being arrested for drunk and disorderly.
CASES
Lister & ors v Hesley Hall Ltd, HL, 3/5/2001
In this case, the House of Lords held the employers of a teacher, who had sexually abused children in his charge, vicariously liable for the abuse.
In reaching this conclusion, their Lordships overruled ST North Yorkshire County Council (1998). In ST, the central issue for the Court of Appeal was whether or not the sexual assault in that case was within the scope of employment. The court found it difficult to reach the conclusion that the sexual misconduct of a teacher towards a pupil could be described as a mode of carrying out an authorised act, and as such the employers were not vicariously liable. In Lister, however, the House of Lords rejected ST as incorrectly decided, arguing that a broad approach was to be adopted. Under this broad approach, the House was able to consider vicarious liability on the basis that the employers had failed to perform their duty to care for the children through the services of the abusing teacher. The determining factor was whether it was fair and just to hold the employer vicariously liable. The House thought that it was.
The decision highlights a desire in the House of Lords to decide the issue of liability on the basis of what is fair, just and reasonable. Deserving claimants can be increasingly confident that they will not be denied compensation because they are excluded by 'control mechanisms'. The traditional requirement that a tort be committed in the course of employment for vicarious liability to exist has been significantly qualified.
Richard Maxwell QC and Rosalind Coe of Ropewalk Chambers were instructed by Last Cawthra Feather for the appellants; Andrew Collender QC and Andrew Miller of 2 Temple Gardens were instructed by Beachcroft Wansbroughs for Hesley Hall.
Karen Lesley Orange v Chief Constable of West Yorkshire Police, 1/5/2001
The appellant's husband (H) had been arrested by the respondent for being drunk and disorderly. H had been allowed to retain his belt while in custody, and he committed suicide by hanging himself from the belt. The appellant brought a claim on behalf of H's estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, alleging that the respondent had been negligent in failing to remove H's belt, failing to monitor H properly and placing him in a cell which provided a suspension point.
The claim had been dismissed on the grounds that the respondent had no reason to believe that H was at risk of suicide. Such a risk had been assessed and the respondent found that it did not apply. The Court of Appeal upheld the previous decision, and it was held that despite the fact that it was possible that H could commit suicide in the cell, thereby not conforming to Home Office Standards, this was not in itself capable of amounting to a breach of the general duty of care.
Tim Owen QC of Matrix Chambers was instructed by Leeds firm Ison Harrison & Co for the appellant; Christopher Johnston of 3 Serjeants' Inn was instructed by and for the respondent.
Angela Parkinson v St James & Seacroft University Hospital NHS Trust, 11/4/2001
The mother of an unwanted baby who was born with significant disabilities brought an action against the hospital that carried out a failed sterilisation operation. The mother claimed for the extra cost of caring for and bringing up a disabled child. The hospital and the mother both appealed against a preliminary decision that the mother could recover damages for the child's disability, but not for the basic costs of its maintenance.
The Court of Appeal held that, following a change in the courts' approach to the law of negligence, a doctor who undertook to prevent conception, pregnancy and birth and negligently failed to do so would be held responsible for the extra cost of bringing up and caring for a child born disabled.
Jeremy Stuart-Smith QC of 2 Temple Gardens and Christina Lambert of 6 Pump Court were instructed by Hempsons for the appellant; Richard Hone QC and Margaret Bickford-Smith of Crown Office Chambers were instructed by Levi & Co for the respondent.
A & ors v National Blood Authority & ors, 2/4/2001
This was the end of a long-running group litigation where the claimants sought damages as a result of being infected with the Hepatitis C virus through blood transfusions from March 1988 onwards. The claimants alleged that the defendants were the NHS bodies responsible for the production and supply of blood and blood products at the time of the infections. However, the defendants submitted that, prior to the introduction of routine screening on 1 September 1991, they had taken reasonable steps to avoid transmitting Hepatitis C in blood.
It was held that the claimants were entitled to expect that blood and blood products transfused to them would be free from infection. Blood products contaminated with the infection were defective within the meaning of Article 6 Council Directive 85/874/EEC 1985, and that once a risk of infection was known, the producers of a product should take the appropriate steps to cover themselves against the risk of defects.
Michael Brooke QC and Jalil Asif of Four New Square, Stuart Brown QC of Park Lane Chambers and Ian Forrester QC of Blackstone Chambers were instructed by Deas Mallen on generic issues and by Deas Mallen, DMH, Evill & Coleman, Freethcartwright and Howard Cohen & Co on lead cases for the claimants; Nicholas Underhill QC, Philip Brook Smith and Louise Merrett, all of Fountain Court Chambers, were instructed by Davies Arnold Cooper for the defendants.
Brian White v (1) White (2) Motor Insurers' Bureau 1/3/2001
The House of Lords held that MIB's Uninsured Drivers Agreement should be interpreted in accordance with European Commission directives on motor insurance. This allows passengers who are injured in a vehicle in which the driver is uninsured to claim damages from MIB, even if the claimant ought to have known that the driver was not insured.
The House of Lords ruled that the Second Council Directive on Motor Insurance 84/5/EEC provided an exception to a general rule which the European Court of Justice stressed should be construed strictly. On the basis of proportionality, a high degree of personal fault had to exist before it would be right for an injured passenger to be deprived of compensation.
Geoffrey Tattershall QC of Byrom Street Chambers and Conor Quigley of Brick Court Chambers were instructed by Hugh Potter & Company for Brian White; Dermod O'Brien QC of 2 Temple Gardens and Fergus Randolph of Brick Court Chambers were instructed by Greenwoods for MIB; Peter Roth QC of Monckton Chambers and Helen Davies of Brick Court Chambers were instructed by the Treasury Solicitor for the intervener.
LEGISLATION
The Damages (Personal Injury) Order 2001
The Lord Chancellor set a discount rate of 2.5 per cent for damages in PI claims, in accordance with the principle set by the House of Lords in Wells Wells (1999). A single rate was set to cover all cases, and the Lord Chancellor also considered a fixed rate to be preferable, which he believed would be a clearer method and avoid the complexity and extra costs that a discount rate formula might bring about.
The 2.5 discount rate was challenged by a number of parties, based on an inaccurate three-year average yield figure which the Lord Chancellor had relied on in his decision. However, following a complete reassessment, he maintained his decision to set the rate at 2.5 per cent after taking all factors into consideration, including the correct average yield figure.
The Lord Chancellor believed that the set rate could be used for the foreseeable future. However, it would remain open for the courts under Section 12 of the Damages Act 1996 to adopt a different rate in any particular case where there are exceptional circumstances that would justify it.
Miscellaneous
'The Judicial Studies Board Guidelines for Assessment of General Damages in Personal Injury Cases' was published on 14 July 2000, and the fourth edition of the Actuarial Tables were published on 29 September 2000.