General Liability newsletter – July 2020

Welcome to the latest edition of our general liability newsletter, rounding up some the key cases from the last few months. This month we look at recent cases and government updates regarding: Ogden tables, fraudulent or exaggerated claims, consent orders, pre action disclosure applications and the vital importance of causation as an ingredient of negligence in addition to breach of duty.

Establishing breach of duty alone is not enough to establish liability: causation is also an essential element

In David Harris v (1) Bartrums Haulage & Storage Ltd (2) Paul Andre Rombough (trading as Par European) (17/04/2020) EWHC 900 (QB) QBD (Sir Robert Francis QC) the Claimant was an LGV driver who worked for the First Defendant. He drove a tractor unit to pick up a trailer which had been parked by the Second Defendant. The trailer was parked on a slight slope and in the process of connecting the tractor unit to the trailer, both ran over the Claimant, causing serious injuries. Investigations showed that the brakes of neither the tractor nor the trailer had been applied at the time.

Claiming against dissolved Companies - applications to restore to the Register are now more likely in historic low value claims

The Court encourages the parties in litigation to engage with each other with a view to resolving differences. Those supposed to be engaging and cooperating sometimes do not. This might be because engagement requires an openness that a party fears will reveal an apparently weak position or will surrender an apparently strong position.  Kevin Cowley v LW Carlisle & Co Ltd [2020] EWCA Civ 227 is an example of how a departure from pragmatism had far-reaching consequences for both parties. 

Court of Appeal considers whether to revise the method used to calculate an award for the cost of purchase of alternative accommodation

The Government actuary’s use of negative multipliers for future loss has proved not to be good news for all Claimants.

The Court of Appeal’s decision in Roberts v Johnstone (17/03/1988) set out a formula for the additional cost to the Claimant of purchasing alternative accommodation to accommodate the consequences of the injury sustained. The full cost of purchase was not used because real property has historically been an appreciating asset and awarding the full cost would lead to the Claimant’s Estate being over-compensated. 

Not quite the whole story...not quite all the costs

The issue of how to deal with fraudulent or exaggerated claims continues to exercise the courts.

In Brian Morrow v Shrewsbury Rugby Union Football Club Limited (30 April 2020) [2020] EWHC 999 the Claimant had been watching his son play rugby at Shrewsbury Rugby Union Football Club. It was a junior match, and the game was being played across the width of the normal field. Spectators were watching from what would normally be the try line close to the rugby posts. During the match one of the upright rugby posts fell away from the crossbar, hitting the Claimant who sustained head and facial injuries. 

Further court guidance on pre-action disclosure applications

The use of the pre-action disclosure procedure under Part 31 of the Civil Procedure rules is sometimes used as a method for trying to obtain information that might bolster a weak claim, and occasionally cynics have suggested it is sometimes merely used as a means to generate income for the applicant’s solicitors. Two recent cases have been considered by the court and further guidance has been issued as to the scope of pre-action disclosure. 

Consent orders – the devil is in the detail

Surprisingly often, consent orders become the subject of later dispute. This probably happens because each party makes assumptions about what is being agreed, and those assumptions do not always coincide. In this case, the parties agreed to a delay in service of a claim but had different ideas about what needed to be done to effect service.

Revised Ogden tables published

On 17 July 2020 the Government Actuary Department published a new edition of the Ogden tables, the 8th.

These are used to derive multipliers, which are the figures by which annual losses are multiplied in order to calculate a capitalised lump sum. They take account of mortality and other risks and are calculated by reference to an annual discount rate.