The 12 Claims of Christmas: A Festive Legal Round-Up

As the festive season descends and the halls of justice echo with the sound of sleigh bells (or perhaps the clatter of legal submissions), we present the General Liability team's “12 Claims of Christmas”, which is a merry medley of recent cases. So, pour yourself a cup of mulled wine (or a strong coffee), and join us as we sing through some of the most memorable claims of the year.

On the first claim of Christmas, a client brought to me: Boyd v Hughes and the Animals Act 1971 section 2(2) strict liability.

A stable hand’s tumble from a horse led to a claim under the Animals Act 1971. However, the claim fell at the first steeplechase with the court finding there was no evidence that the horse, 'Foxy', was likely to cause such injury, having no special characteristics that increased the risk of damage. Foxy's behaviour was not out of the ordinary and therefore, the requirements for strict liability under the Animals Act 1971 had not been made out. In these types of claims, the analysis depends on the facts of the case and can often involve expert evidence on the usual characteristics of the species and circumstances in question.

Sometimes, even the most seasoned rider cannot rein in the law…for more information on this claim, see our article here.

On the second claim of Christmas, a client brought to me: Hayley v Newcold and a claim centred on causality.

The court was required to make the difficult (and quite unusual) assessment of whether the effective cause of a claimant's amputation was an accident suffered at his workplace or due to his own conduct. In reaching its decision, the court relied on video surveillance footage of the claimant prior to the amputation that showed the claimant's disability to be inconsistent to the claim presented by him, as well as the claimant's own evidence that he had regularly been playing Airsoft (a physical combat situation game where players avoid being hit with pellets).  For a deeper dive into this decision, see our article here.

On the third claim of Christmas, a client brought to me: Young v Downey and a claim for psychiatric injury.

The Court of Appeal overturned the first instance decision which found the claimant had not satisfied the requisite criteria for a claim as a secondary victim, in that at four and a half years old she could not have appreciated that her father was involved in the Hyde Park bombing explosion. The Court of Appeal held that the initial decision was wrong as the expert evidence should have been followed and not ignored and, had the judge done so, the required relationship of proximity would have been established.

On the fourth claim of Christmas, a client brought to me: Johnstone v Fawcett’s Garage (Newbury) Limited and the issue of materiality.

Mrs Johnstone was a worker at a garage and her husband brought a claim against her employer alleging exposure to asbestos during her employment caused her to develop mesothelioma. The respondent admitted that there had been unsafe practices in the workshop at the time of Mrs Johnstone's employment, which did generate clouds of dust containing asbestos fibres. However, the Judge reached the decision that this would have only increased the risk of developing mesothelioma by 0.1% and therefore this did not give rise to a material increase in risk.  Mr Johnstone appealed, and the Court of Appeal upheld the High Court's decision. Permission to appeal to the Supreme Court was refused on the grounds that it did not raise an arguable point of law.

On the fifth claim of Christmas, a client brought to me: O’Connell v Ministry of Defence with equine injury and a finding of fundamental dishonesty.

A gunner’s claim for riding injuries was dashed, not just by the facts, but by a finding of fundamental dishonesty. Not only did the court find the claimant had been dishonest about adaptions she claimed had been made to a car (the VIN number proved that she had in fact purchased a second vehicle of the same make and model following release of surveillance footage by the defendants), but the surveillance footage disclosed by the defendant showed her carrying out activities inconsistent with her contemporaneous representations to the experts in respect of her levels of disability.  In reaching its decision, the court gave permission to the defendant to enforce any costs order under CPR 44.16.

On the sixth claim of Christmas, a client brought to me: Brown v Morgan Sindall Construction and Infrastructure Ltd and a cycling calamity.

A cyclist’s encounter with a traffic bollard missing a reflective wand led to a claim against the construction company in negligence and/or nuisance. Whilst it was found likely that vandals may have removed the wand, the defendant was or ought to have been aware that these acts of vandalism on the bollards were taking place and that this resulted in a safety risk for cyclists. Effective inspection and maintenance to mitigate the risk was not carried out by the defendant. A finding of 5% contributory negligence was made due to the claimant cycling too close to the centre of the line. The defendant's allegations of fundamental dishonesty were rejected. A timely reminder: hazards don’t take holidays.

On the seventh claim of Christmas, a client brought to me: Rawson v Tui UK Ltd and a reminder of the burden of proof for causation to be on the balance of probabilities.

A claimant alleged an illness suffered whilst on holiday was caused by the ingestion of a pathogen in contaminated food or drink at the hotel they were staying at. The trial judge dismissed the claim, and the claimant appealed. The Court of Appeal agreed with the initial decision, that the claimant had become ill on holiday but that the claimant had failed to prove, on the balance of probabilities, that the illness was caused by contaminated food or drink from the hotel.

On the eighth claim of Christmas, a client brought to me: Read v Middlesex Hospital Trust and a struck out claim for lack of specificity.

The claimant had been ordered to amend their Particulars of Claim to adequately particularise their claim for breach of duty against the Accident & Emergency department and subsequent orthopaedic ward. However, the defendant sought to strike out the amended particulars on the basis that the claimant had not complied with the order. The amended particulars failed to particularise the claim and were also not supported by expert evidence.  The claimant sought permission to re-amend his claim. The Court found in favour of the defendant and held the order had not been complied with because the claimant had not produced further and better particulars. In fact, it held the statement of case disclosed no reasonable grounds for bringing the claim. The court also confirmed that CPR44.15, in respect of strike out, disapplied QOCS protection.

On the ninth claim of Christmas, a client brought to me: Chuhan v Dechert and the meaning of 'equipment' under the Employers' Liability ((Defective equipment) Act 1969).

A lawyer brought a claim against her employer after suffering an injury when the top of a door handle fell and hit her in the head. The Court had to decide if the door itself or the handle constituted 'equipment' for the purposes of the 1969 Act. Whilst acknowledging the existing authorities on equipment were not comparable to the present case, structural elements such as doors or door handles did not fall within that definition. It needed to have a meaningful connection to the employer's business of giving legal advice. For more analysis on this decision, see our article here.

On the tenth claim of Christmas, a client brought to me: Clark v Elbanna and recklessness in the sport of rugby.

A collision during an amateur rugby match led to the claimant suffering a serious spinal injury. In a decision by the Court of Appeal, the Judge found that the defendant's actions went further than momentary carelessness or error of judgment and made a finding of recklessness which duly encompassed a finding of negligence. In this claim, the expert-driven factual findings provided an important basis for the judgment.

On the eleventh claim of Christmas, a client brought to me: Pashamov v Leon Taylor and more on employer's liability.

An employee was struck by a car while crossing a busy road after alighting a bus provided by the employer to inform other employees of its arrival.  The claimant was found partly to blame for not looking both ways to the tune of 35% contributory negligence, but his employer bore the lion’s share for failing to provide a safe crossing. The driver of the care was found not to have been driving below the appropriate standard. The employer argued the claimant was “off duty,” but the court disagreed - finding the employer negligent for failing to follow its own risk assessment by not ensuring the bus stopped in a safe location and effectively requiring the claimant to cross a busy road.. The lesson? Safety measures are not just for Christmas, they’re for every working day, which does not necessarily end when an employee leaves the building.

On the twelfth claim of Christmas, a client brought to me: Suffolk CC v Lyall and boardwalk that was slippery.

A wooden boardwalk, moss, and algae proved a recipe for disaster for the claimant as it resulted in a slip and her suffering from a broken ankle. Although the Court acknowledged there was no statutory duty under the Highways Act 1980, to keep a right of way free from moss and algae, such duties are separate from liability for positive acts. Here the defendant council had undertaken a positive act in the commission of the boardwalk, which created a foreseeable risk of slipping in damp/shady conditions. Here, therefore, the common duty to take reasonable care to guard against the risk arose.

For more information on how RPC's General Liability team can help, please contact Thom Lumley.

Wishing all our clients and colleagues a safe, happy, and legally sound festive season. May your claims be merry, your liabilities light, and your compliance evergreen!