Personal injury case law update: July 2012

Leon Glenister provides a personal injury case law update for July.

Blair v Chief Constable of Sussex

Citation: Blair v Chief Constable of Sussex [2012] EWCA Civ 633

Keywords: Personal injury, health and safety at work, police, work equipment

Held: The Court of Appeal gave useful guidance on the structured approach to reg 4 of the Personal Protective Equipment at Work Regulations 1992. In summary, reg 4(1) places a duty on the employer to ensure suitable protective equipment is provided to employees where there is a risk to health and safety at work. ‘Suitable’ is defined by a list of factors at reg 4(3).

The facts involved a training policeman who was injured on a motorcycle when off-road. He claimed he should have been provided with motocross boots, rather than the standard issue boots he was wearing.

The Court of Appeal held that there was a structured approach to analysis under the regulation. In addressing the question of suitability, one starts at whether “so far it is practicable, [the equipment] is effective to prevent or adequately control the risk or risks involved without increasing overall risk” (reg 4(3)(d)). Only where the equipment was effective or it was impracticable to make it effective are the other factors under reg 4(3) considered. The judge noted the “sea change from the old concepts of common law negligence”. At trial, the required approach was not adopted – the boots were found not effective, but the Chief Constable never had a chance to show it was not practicable to use the motocross boots. The parties did not want this to go to retrial, and so the court only considered the evidence before it. On that basis, the Chief Constable was found liable.

Ali Ghaith v Indesit

Citation: Ali Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642

Keywords: Personal injury, health and safety at work, employment

Held: The Court of Appeal gave guidance on regulation 4 of the Manual Handling Operations Regulations 1992. In summary, the regulations provide that where it is not reasonably practicable to avoid the need for employees undertake operations at work which have an injury.

(1) R4(b)(i) requires a suitable and sufficient assessment of all such manual handling operations;
(2) R4(b)(ii) requires appropriate steps to be taken to reduce the risk of injury to the lowest level reasonably practicable.

The facts involved an employee who suffered a back injury whilst carrying out a stock take during which he was required to lift and move boxes. The employee alleged a breach of both requirements.

The court made clear that the requirements were separate. The requirement under (b)(ii) was in addition to (b)(i), though carrying out an assessment may be persuasive to show appropriate steps had been taken. Here, the Court did find that there was no suitable or sufficient assessment where not all the risks were addressed, such as the risk of injury over a long period, so this was of no assistance to the employer.

Where there was a claim under regulation 4(b)(ii), the burden of proof was on the employer to show it had taken appropriate steps to reduce the risk to the lowest level reasonably practicable. The court noted “it is a burden that is inevitably difficult to discharge”. As to causation, where the employer fails to show he took reasonable steps he will usually be liable. However, where he does show he has taken reasonable steps, it is for the employer to show that injury would still have occurred. The burden is not on the employee to prove a negative.

Phethean-Hubble v Coles

Citation: Phethean-Hubble v Coles [2012] EWCA Civ 349

Keywords: Liability, child, cyclist, contributory negligence

Held: The 16 year old claimant cyclist was cycling along a pavement when he abruptly cycled off the pavement into the road and into collision with a car driven by the 17 year old defendant. At first instance the trial judge found the claimant 50% to blame for the accident, but reduced this to one third contributory negligence to reflect his tender years.

On appeal the Court of Appeal acknowledged that it was open to the trial judge to make a finding of 50% contributory negligence on the facts, but that it was not just and equitable to then reduce this to one third merely because the claimant was 16 years old. Having considered similar authorities Lady Justice Black delivering the leading judgment said that there was no reason to treat the claimant as if he were anything other than an adult in respect of contributory negligence. Therefore the Court of Appeal substituted a finding of 50% contributory negligence for the trial judge’s one third reduction.

Hughes v Williams & Williams

Citation: Hughes v (1) Williams (Deceased) (2) Williams [2012] EWHC 1078 (QB)

Keywords: Road traffic, child, contributory negligence

Held: The 3 year old claimant was seriously injured in a road traffic collision when the defendant’s car swerved into the car she was travelling in. Liability was admitted and the claimant’s claim settled by the defendant. However the claimant’s mother was joined to the action by the defendant as a third party. The mother was joined because she had strapped the claimant into a booster seat for which the claimant did not meet the age, height or weight criteria, even thought there was an appropriate child seat also in the car. If she had been strapped into an appropriate child seat, the claimant would only have suffered slight injuries. On hearing the third party claim, Mr Justice Blair followed the principles set out in Froom v Butcher and ordered a contribution of 25% to the damages from the mother.

Dockerill & Healey v Tullett & another

Citation: (1) Dockerill (2) Healey v Tullett and another [2012] EWCA Civ 184

Keywords: Infant approval hearing, costs

Held: The Court of Appeal gave guidance as to costs in infant approval Part 8 claims where the agreed and approved damages do not exceed £1,000 as well as the recovery of Counsel’s fee for attending the hearing in cases which fall within the costs scheme set out in Section II of CPR45.

As to the latter point, the Court of Appeal stated that unless there was some complexity in the case which justified counsel to be instructed to appear, the convenience of having counsel attend the hearing has to be borne by the solicitors as part of their costs just as they would have had to meet the costs of instructing a local agent.

Where the agreed settlement figure is below £1,000 therefore preventing the operation of the fixed costs schemes, the Court of Appeal stated that costs fall for assessment under CPR 44.5, but that this is not a normal multi track assessment of costs. The costs judge is entitled to take into account the size and complexity of the claim and consider questions of proportionality. The costs judge should ask himself whether the claim and compromise was sufficiently complex as to have justified the engagement of solicitors beyond the production of a report on the merits of a settlement or in respect of any other step in the proceedings (paragraph 43 of the judgment).