For our report of the Court of Appeal’s decision, on the issue of mitigation of loss, read our credit hire briefing.

For further information contact Kathy Dwyer, 01622 625 649, or Leanne King, 0845 838 4815.

Mr Spencer was employed as a shunter-driver by Wincanton. In March 2000 a collision with his stationary tractor unit caused his right knee to strike a bolt on the steering column. The knee remained painful and eventually an above-knee amputation was carried out in February 2003. Liability was not in dispute. It was accepted that the amputation was as a consequence of the original accident. He made a good recovery and was fitted with a prosthesis, but this could not be worn whilst driving until his car was adapted. On 14 October 2003 whilst at a Sainsburys’ petrol station, and not using his prosthesis or his sticks, he caught his foot against a raised manhole cover and fell, causing damage to his left leg, permanently confining him to a wheelchair. At first instance whilst Sainsburys were found not liable for the 2003 accident, Mr Spencer was found one third contributorily negligent in this regard. The key issue on appeal was whether Wincanton should avoid damages for the injuries arising out of the fall at the petrol station on the basis that the chain of causation had been broken.

Held: The Court of Appeal considered that the apportionment of blame in respect of the 2003 accident spoke clearly against a finding either that Mr Spencer acted recklessly or that it was unfair to find the chain of causation had been broken by his actions. Like the amputation, the fall was, on the Judge’s findings, an unexpected but real consequence of the original accident, albeit one to which Mr Spencer’s own misjudgement contributed. Accordingly, Mr Spencer was entitled to recover damages for two-thirds of the consequences of the 2003 accident.

Comment: Defendants and their insurers are often faced with claims where an unwise or risky act on the part of a claimant in an ongoing personal injury action results in the aggravation of his injuries. This case provides guidance on the test the courts will use to decide whether the claimant’s damages are to include the aggravated element of the injury. The decision is a reminder to defendants and their insurers that there will be a high burden on them to show that the actions of a claimant have been so reckless, as to break the chain of causation.

It is interesting to note that the Defendant’s insurers had taken the view that, with a stoical Claimant who was determined to rehabilitate himself as far as he could, their best course lay in assisting him to do so and not settling too soon. It was unfortunate for them that, on this occasion, delay in doing so has resulted in a much more significant claim.

For further information contact Richard McKeown, Kennedys, 0161 829 2583.

The claim arose out of a “Health & Fun Day” in 2005 at RAF High Wycombe. This included six “It’s a Knockout” style games. The last of the games was a relay race. Members of the teams had to run up to an inflatable rectangular pool, get in over the side, grab a piece of plastic fruit floating in or under a shallow depth of water, carry it out of the pool and deposit it in a bucket. The pool belonged to Corporate Leisure (UK) Ltd (“CL”). When it came to Mr Uren’s turn he launched himself over the side of the pool in a continuous movement, head first with his arms outstretched ahead of him. Tragically he hit his head on the bottom of the pool and broke his neck. He is now tetraplegic. He claimed that both CL and his employer, the Ministry of Defence, were negligent and in breach of statutory duty.

Held: Having accepted the expert evidence of Professor Ball (called by CL) that a very small risk of injury existed, the Judge found that this did not mean the Defendants were in breach of their duty of care. Therefore the claim failed.

Comment: Defendants and their insurers will welcome this judgment, which will provide a helpful precedent in cases where accidents occur in the course of games or sporting activities. Mr Justice Field took the view that the pool game was enjoyable in part because of the physical challenges it posed to contestants. At the conclusion of his judgment, he commented that “Enjoyable competitive activities are an important and beneficial part of the life of the very many people who are fit enough to participate in them … such activities are almost never risk-free … a balance has to be struck between the level of risk involved and the benefits the activity confers on the participants and thereby on society generally.”

The important part the expert evidence played in this case should be noted. The Judge relied heavily on the evidence of CL’s expert, Professor Ball, whom he described as “a most impressive witness”. Selecting the best expert for the case remains a key component of a successful defence.

For further information contact Kathy Dwyer, Kennedys, 01622 625 649.

The level of NHS charges payable can be substantial - in some cases in excess of £40,000. Significant savings can be made in appropriate cases, providing the case has been finally settled, a formal agreement is reached in relation to contributory negligence and that this is sufficiently clear and documented.

New guidance (via a circular) has been issued by the DWP. This implies that extensive documents (statements are mentioned) are needed to support a request for a reduction on account of contributory negligence.

However, in practice a sufficiently clear consent order or clear correspondence from both parties on headed notepaper is sufficient to achieve this. Typically, this may take the form of letter from one party to another offering to accept say 25% contributory negligence and a letter from them accepting that offer.

In essence, the DWP need to be satisfied of:

• The identity of the parties and their representatives.
• That a clear offer of contributory negligence has been made and accepted.
• The amount of that reduction.

Finally, a request and supporting evidence must be sent to the Compensation Recovery Unit no later than 3 months after the settlement of the claim.

For details of the current levels of NHS charges and more information about recoverable benefits, including details of our specialist Benefits Recovery Unit, see our Benefits Briefing.

For further information contact Paul Morris, Kennedys, 0121 214 8027.