Mrs Baker’s claim was one of seven claims which were dismissed by the High Court in Nottingham in 2007. These claims were selected from about 700 outstanding claims of a similar nature. From 1971 until 1991 Mrs Baker had been employed by a knitting company. The ambient noise at her places of work was about 85 to 86d(B)A. Her employer provided her with ear protectors in 1989. At first instance her claim was dismissed because the Judge held the employer had not been in breach of duty during the material time, either at common law or under s.29 of the Factories Act 1961.

Held: The process by which liability under s.29 is to be proved is well established. First, the claimant must show that their place of work was not safe. On the evidence before the Judge, places of work where the ambient noise levels were 85d(B)A or above were not safe. The burden then passes to the employer to show that it was not reasonably practicable for them to eliminate the risk of harm. To avoid liability they have to show that the burden of eliminating the risk substantially outweighed the “quantum of risk”. Before the publication of the Code of Practice published by the Department of Employment in 1972, there was no reason why employers in the knitting industry should have been concerned about the problem of noise. However, until the publication of the British Standard BS 5330 in July 1976 it was not easy to assess the quantum of risk from noise in the 85 to 90d(B)A range. By January 1978 any employer of average size in the knitting industry who exposed his employees to 85d(B)A or more, should have provided its employees with ear protectors. On this basis Mrs Baker was exposed in breach of duty for 12 years and an award of £3,334 was made.

Comment: This is a disappointing decision for defendants and their insurers. It follows previous unsuccessful attempts by claimants to reduce the pre-1990 actionable noise threshold to 85d(B)A.

It is likely that, as a result, many more claims will be brought for industrial deafness. However, it will still be necessary for claimants to show causation. It will often be the case that such loss can just as readily be attributed to the natural ageing process or to some other cause. It should be noted that six out of seven of the claimants in this case failed to prove causation at first instance.

For further information contact Tim Wilson, Kennedys, 020 7667 9331.

On 12 July 2001 Scott Palmer, then aged 14 and a pupil in year 9 at a school in Cornwall, was hit in the eye by a rock thrown at a seagull, by another pupil. The accident occurred during a lunch hour in an outside play area. Supervision of the play area was organised on a rota basis and was carried out by dinner ladies. At the time of the accident only one dinner lady was on duty outside, supervising around 300 pupils. There was a designated area for years 9 and 10 at one end of a field and a designated area for years 7 and 8 at the other. Each area was about the size of a football pitch. A claim was brought against the Council as local education authority under the Occupiers Liability Act and in negligence. The claim was dismissed at first instance and an appeal was brought in relation to the claim in negligence.

Held: To have one dinner lady supervisor who would be stretched to supervise over 150 pupils in years 7 and 8, only glancing occasionally at years 9 and 10, was clearly negligent. Since the purpose of appropriate supervision is to deter children taking part in dangerous activities the court should not be too ready to accept that the dangerous activity would have taken place anyway. There was no reason not to accept the evidence of Scott’s witnesses that if a supervisor had been near they would not have thrown stones because they knew that stone throwing was prohibited.

Comment: Scott originally brought a claim against the pupil who threw the rock, but withdrew this before the liability trial. The recent case of Orchard v Lee, reported in the May edition of Liability Brief, confirms that findings of liability against children are unlikely to succeed. In that case a 13 year old boy playing tag at school was not liable for an accident involving a lunchtime supervisor.

However, those involved in the supervision of children’s activities should be alert to the fact that they will need to show that sufficent supervision is in place in the event that an accident occurs. Arrangements for supervision should, if necessary, be reviewed.

For further information contact Elizabeth Acheson, Kennedys, 01622 625 667.

Mr Raggett, who at the time of the hearing was aged 50, claimed damages consequent upon sexual abuse and assaults allegedly committed on him by a teacher, Father Spencer at Preston Catholic College where he was a pupil from 1969 until 1976. Mr Raggett and his witnesses gave detailed evidence of the alleged abuse. Mr Raggett claimed that it was only in April 2005 when he got very drunk and revealed details of the abuse to a priest with whom he was drinking that he realised that various problems in his life had occurred as a result. The issues to be determined at the hearing were whether abuse had occurred, if so its nature and extent, and limitation issues.

Held: The Judge was satisfied that the evidence showed Mr Raggett was the victim of a sustained course of sexual abuse and assaults by Father Spencer. In relation to limitation, in accordance with the provisions of the Limitation Act 1980 the claim could not be brought more than three years after Mr Raggett’s date of knowledge that he had suffered a significant injury. The Judge considered the decision of the House of Lords in A v Hoare and others [2008] where it was held that, when determining the date of knowledge, the test to be applied was an objective (as opposed to subjective) one. He held that Mr Raggett must have known from the time the acts of sexual abuse were committed, the nature and extent of these. Accordingly, the claim became statute barred in June 1979. However, taking all the circumstances of the case into account it was equitable to allow the claim to proceed under s.33 of the Limitation Act.

Comment: The House of Lords held in A v Hoare that s.11 of the Limitation Act (as opposed to s.2) applied to cases of deliberate assault, meaning that claimants could ask the courts to exercise their discretion to extend the limitation period under s.33. Following this decision, the concern was that victims of abuse could potentially bring claims for compensation many years after the events occurred. This was however subject to their being able to show that a fair trial was still possible.

Whilst this case illustrates that it will be possible for claims to be brought at a late stage, this will not always be the case. In the January edition of Liability Brief we reported on the case of TCD v Harrow Council and others [2008]. In TCD the Claimant sought damages from three local authorities in respect of historic child abuse and it was held that, given evidential difficulties, it would not be equitable for her claim to proceed. Each case will be decided on its own merits and defendants should in appropriate cases continue to contest attempts to bring claims for deliberate assault at a late stage. The decision to contest should have regard to the circumstances surrounding the delay from the date of knowledge and the defendant’s access to evidence, including whether witnesses are alive and records exist.

For further information contact Andrew Caplan, Kennedys, 0845 838 4805.

On 8 January 2006 a car driven by Mr Shapoor was involved in a collision with a car owned by Promo Designs and driven by Mr Anwar. At the scene of the accident Mr Anwar stated that he was insured by Direct Line. Within a month of the accident Mr Shapoor consulted solicitors who ascertained that Direct Line did not insure the vehicle. They spoke to Mr Anwar who said that he did not have insurance. On receiving this information Mr Shapoor did not make any formal complaint to the police. It was submitted on behalf of the MIB that as a result he had breached clause 13 of the Uninsured Driver Agreement 1999 which states that “MIB shall incur no liability under MIB’s obligation unless the claimant has as soon as reasonably practicable: (a) demanded the information and, where appropriate, the particulars specified in section 154(1) of the 1988 Act, and (b) where the person of whom the demand is made fails to comply with the provisions of that subsection – (i) made a formal complaint to a police officer in respect of such failure…”

Held: The obligations of a claimant who wishes to take advantage of the Uninsured Driver Agreement 1999 are clear and straightforward. In accordance with the provisions of clause 13, he must as soon as reasonably practicable request from the third party the particulars specified in section 154(1). The first question is “Are you insured?”, to which the answer is either “Yes” or “No”. If the third party fails to give one of these two answers within a reasonable time, he has failed to comply and the claimant must then make a formal complaint to the police. If the answer is “Yes”, the third party must provide particulars of his insurance. If he fails to do so within a reasonable period of time or gives false particulars he has again failed to comply and the claimant must make a complaint to the police. But if the third party initially gives incomplete or inaccurate information he has not lost his chance to comply by subsequently saying within a reasonable time “I am not insured”. Accordingly in this case Mr Shapoor was under no obligation to report Mr Anwar to the police and had not lost his entitlement to claim against the MIB.

Comment: Following this case it is clear that where the third party has initially given inaccurate information to the claimant, the claimant does not breach the Uninsured Driver Agreement 1999 by failing to make a formal complaint to the police. The obligation to make a complaint to the police only arises where the third party has refused to give their details or has failed to respond to a request for these.

For further information contact Richard West, Kennedys, 0845 838 4832

Mrs Smith was employed by the Council as a driver and carer. As part of her job she was required to collect people who were in need of care from their homes and take them by minibus to a day centre. One of these people was Mrs Cotter, a wheelchair user. In order to exit Mrs Cotter’s home, Mrs Smith had to manoeuvre her wheelchair down a ramp, which led from her living room to a patio. The NHS had placed the ramp there about 10 years previously. On 1 December 2004, when Mrs Smith was using the ramp, an edge of the ramp crumbled beneath her foot, causing her to stumble and sustain injury. Prior to the House of Lords hearing, and following the decision of the House of Lords in Spencer-Franks v Kellogg Brown and Root Ltd [2008], it was accepted that the ramp was work equipment for the purposes of the Provision and Use of Work Equipment Regulations 1998.

Held: Delivering the leading judgment, Lord Mance said that the relevant question was whether, in respect of the Council as Mrs Smith’s employer, the ramp was relevant work equipment, in particular for the purposes of regulation 3(2), which imposes strict responsibilities on an employer for “work equipment … provided or used by an employee of his at work.”. An entirely literal approach to the words “or used” cannot be correct. The example given was that otherwise this would mean a solicitors’ firm being strictly liable to its clerk who was required to attend a House of Lords hearing for injury caused by a defect in a House of Lords’ Committee Room chair used by the clerk. The words “or used” may have been inserted to cover a situation where an employee uses equipment which one would ordinarily expect to have been provided by the employer, say their own saw or screwdriver. Lord Mance stated, “What matters is that some specific nexus (beyond the mere fact of use) is required between the equipment and the employer’s undertaking.” The test is whether the work equipment has been incorporated into and adopted as part of the employer’s business. The ramp was not incorporated into and adopted as part of the Council’s undertaking and so the claim failed. Lords Neuberger and Carswell agreed with Lord Mance. Lord Hope and Baroness Hale dissented.

Comment: This decision, which upholds the Court of Appeal decision albeit for different reasons, represents good news for defendants and insurers. The decision last year in Spencer-Franks expanded the scope of strict liability for work equipment, but the House of Lords has now limited its scope.

In many cases there will be no doubt that the employer is responsible for the equipment in question. However, the decision will be helpful to employers whose employees regularly work away from the workplace, as it sets in place clear guidelines for determining whether liability will apply. In particular, employers will not be at risk of being held liable for equipment for which they have no responsibility. There must be a specific link between the equipment and the business for strict liability to apply.

For further information contact Sarah Stutchfield, Kennedys, 0161 829 2577.

The claim arose out of a construction site accident where two workers were crushed following the collapse of an internal wall, both suffering serious multiple skeletal and facial injuries. John Marshall was the more seriously injured of the two. His schedules of special damages repeatedly claimed in excess of £500,000. He was however well motivated to get back to work and was very receptive to the Defendant’s offers of rehabilitation and participated well in the programme.

Carillion made an early Part 36 offer to settle Mr Marshall’s claim for £265,000 in October 2007. Irwin Mitchell’s response to that offer was merely to reject it out of hand, with no suggestion of a counter proposal or willingness to discuss settlement. The claim continued towards trial without any counter proposals for settlement from Irwin Mitchell, and it was not until late 2008 that the idea of a joint settlement meeting (JSM) was floated on Mr Marshall’s behalf.

The JSM took place in March 2009. Following negotiations, Mr Marshall’s claim was settled in the sum of £285,000 i.e. £20,000 more than the offer made in 2007, subject to CRU deductions of £13,000.

Following the decisions in Carver v BAA [2008] and Multiplex v Cleveland [2008], we argued that Mr Marshall should suffer a very severe costs penalty on the basis that, although he had done marginally better at the JSM than the original offer, he had made no attempt to negotiate and had simply rejected the earlier offer. Further, particularly when recoverable benefits were taken into account, he had in fact done no better than had he accepted the original offer and invested that sum.

Irwin Mitchell would not accept these arguments so the parties took the discrete issue of costs and Mr Marshall’s conduct to a hearing at Sheffield County Court before HHJ Bulliemore on 11 May 2009. The Judge agreed with our arguments. He found that:

• Mr Marshall had simply rejected Carillion’s offer outright and made no counter proposals or any other attempt to negotiate.
• Although he had accepted an increased offer from Carillion at the JSM, the reality of the situation was that that settlement was much less than the £500K+ sum he was looking for.
• Had he accepted the original offer and invested the sum, he would in fact have been better off.

The Judge therefore disallowed Mr Marshall’s costs from the last date on which he could have accepted the offer in 2007, a sum estimated to be in the region of £80,000 - £100,000. Carillion were awarded their costs of and occasioned by the costs hearing.

Comment: It is becoming an increasingly common trend for claimants and their solicitors to reject defendants’ offers without any counter proposals in return. This may be due to inexperienced unqualified staff running the claims, which invariably means they are in no position to have a reasonable discussion with the defendant, and which in itself results in claims being prolonged and costs being increased.

However, following Carver and Multiplex however, Kennedys and Carillion tested the courts’ views again on these practices in Mr Marshall’s claim. We asked the Court to consider how a situation should be approached where the defendant had made an offer which was nearly but not quite sufficient and the other party had rejected that offer outright without any attempt to negotiate. The Court took a dim view indeed on this occasion of Irwin Mitchell’s handling of Mr Marshall’s claim. His damages were ring fenced under the terms of the CFA so the loss here was entirely Irwin Mitchell’s.

It is clear following this judgment that the courts will apply the principles laid down in Carver and Multiplex and will look to penalise parties whose conduct leads to needless increases in costs.

Defendants should therefore continue to:

• Make early substantive Part 36 offers wherever possible.
• Vigorously look to penalise claimants where the offer needs to be increased “marginally” but where claimants reject such offers and refuse to talk until late in the day.

Gone are the days where claimants, who either beat a defendant’s offer or reach a compromise which betters the offer monetarily, will automatically receive a favourable costs order, particularly where they refuse to talk.

For further information contact Radd Seiger, Kennedys, 0121 633 2228.