Welcome to the latest edition of our general liability newsletter, rounding up some of the key cases from the last few months.

Welcome to the latest edition of our general liability newsletter. In this edition we look at the key trends, cases and updates you need to be aware of including relief applications, QOCS and secondary victims in personal injury claims. We hope you find this useful, if you have any questions please get in contact with a member of the team.

What a relief! Or not, as the case may be…

In Yesss (A) Electrical Ltd v Martin Warren the court considered whether an application for relief is required or whether an application to rely on further medical evidence is enough. 

The Background

The underlying claim was a personal injury claim against an employer. Mr Warren was employed by the defendant, Yesss(A) Electrical Ltd, when he claims that he was loading goods into the back of a van and suffered an injury.

Mr Warren valued his claim at £140,000 and liability was disputed, along with allegations that there had been fundamental dishonesty by the claimant in respect of care costs.

A CCMC took place on 19 October 2020 and the subsequent Order directed the claimant to obtain expert evidence from an orthopaedic surgeon. The claimant had obtained 4 expert reports and at the CCMC he was given permission to rely on those reports. Importantly, in one of those reports, the expert stated that he considered evidence from a pain management expert should be pursued.

The litigation progressed, witness evidence was exchanged, and pre-trial checklists were filed in October 2021. The trial date was listed for April 2022 but was vacated because witnesses were not available. On 22 February 2022, the claimant made an application for permission to rely on further expert evidence from pain management and psychological experts.

On 25 February 2022, the trial was listed for 20-21 September 2022, but the claimant applied again to vacate that date due to availability of witnesses.

On 27 June 2022, the applications were heard. An Order was made vacating the trial and on 18 August 2022, a further Order was made which gave the claimant permission to rely on expert evidence from a pain management expert but not permission for evidence from a psychologist.

In reaching the decision, the judge relied on the case of T(Child v Imperial College Healthcare Trust [2020] EWHC 1147 and held the matter should be decided in accordance with the overriding objective and was not subject to an application for relief from sanctions.

The judge found the application to be 'late' but determined it was not 'very late' because the trial had already been vacated.

The appeal

The Defendant appealed this decision, and the appeal was heard on 11 November 2022. In reaching its decision the court reviewed the relevant case law and identified conflicting authorities for whether late evidence required an application for relief from sanctions under CPR 3.9. The Court confirmed that any application to serve factual witness evidence after the deadline must be an application for relief from sanctions.

HHJ Glen favoured the approach taken in the case of T(Child) v Imperial and held that 'lateness itself did not engage 3.9' distinguishing between a breach of a time limit imposed by a rule or order and those cases where there is no such breach. However, permission for a second appeal was granted.

The Court of Appeal decision

The court confirmed that 'only if there is both a breach and a sanction does r 3.9 apply' [para 33]. The way to approach it is first, you must identify if a rule, Practice Direction or Order has been breached. Once a breach has been identified, the next step is to identify the applicable sanction and, if there is no rule, Practice Direction or Order, there can be no breach.

Given the claimant had not provided the court with any dates for the pain management expert despite this being a direction in the allocation orders, nor was the pain management expert listed in the pre-trial checklists, the defendant argued that an application for relief from sanction was required.

The relevant rule here is CPR 29.4, which is designed to assist the parties in agreeing directions and submitting any proposals. The court analysed the facts of the case and disagreed, stating that, "The fact the respondent ought to have raised the pain management expert earlier does not mean these terms of this Practice Direction were breached in not doing so".

The Judge then considered Practice Direction 29 and followed the same reasoning; the fact that the provisions in the Practice Direction indicate that the claimant ought to have sought to rely on pain management expert evidence does not mean that the Practice Direction was breached because the respondent did not.

The second ground of the appeal was that, even if the matter needed to be decided in accordance with the overriding objectives, the application should still be refused.

In examining the initial decision, the Court of Appeal identified that the judge agreed that the fact the claimant was only just raising it now was 'very near the line' and that other judges may have refused the application. However, he held it was within the judge's discretion to grant permission. The court deemed the 'critical' factor in the decision was that there was no trial listed.

The court found the judge had considered all the relevant factors and was entitled to use their discretion in reaching this decision.

Summary

Whilst this case may not be a groundbreaking decision, it does provide clarity where there have previously been conflicting authorities.

The reason given in this case for the late application was that there was a change in claims handler for the file. To avoid situations like this arising, best practice is to always carry out file reviews/strategy reviews and ensure potential avenues of the claim are not missed. Whilst the claimant was fortunate in this instance that the court found in their favour, it could easily have gone the other way. The judge drew on the importance of timeliness and being prompt in making applications as well as compliance with Orders. Had the trial not already been vacated, the decision would very likely have been different.

It is also always important to follow up any recommendations by experts in terms of further evidence that may assist the claim and to do so promptly, ensuring that any relevant directions are put before the court at the earliest opportunity.

Administrative errors happen and people make mistakes. It is important to do all you can to rectify that mistake as soon as possible.  The same applies if you have breached a rule or Practice Direction - apply for relief from sanctions as soon as possible. Any delays can result in the matter being decided against you.

To QOCS or not to QOCS, that was the question (in Clark v Adams): QOCS still applies where nominal damages of £1 sought "for vindicatory purposes"

From April 2013, qualified one-way costs shifting (QOCS) has applied in claims for damages for personal injuries or death.  Where QOCS applies, the defendant is prevented from enforcing any costs order made against the claimant without the court's permission with certain provisos.  The scope of the exceptions to QOCS has been the subject of much litigation, but a relatively novel point arose in Clark v Adams [2024] EWHC 62 (KB).

The case

The claimants had been injured in bombings attributed to the Provisional Irish Republican Army (PIRA) in 1973 and 1996. They issued proceedings against PIRA and the President of Sinn Fein a few days before legislation precluding Troubles-related claims came into force. 

While the court struck out the claims against PIRA (since an unincorporated association was not a legal entity which could be sued) and against Gerry Adams in a representative capacity (the court not being satisfied that he represented a defined class of people with the same interests), the claim against Gerry Adams in his personal capacity was allowed to proceed.  The proceedings alleged that Mr Adams was a leading member of PIRA and a member of its Army Council at all material times, something which Mr Adams denied.

According to the Claim Form, the claimants sought damages limited to "£1 for vindicatory purposes" for the torts of assault and/or battery, referring to the claimants' injuries.  The Particulars of Claim gave particulars of injury, enclosed medical reports and stated that the claimants sought £1.00 between them "in respect of their pain suffering and loss of amenity" (PSLA), "for vindicatory purposes".

The QOCS issue

The defendant argued that QOCS did not apply to the claims as they did not include a claim for damages for personal injuries within the meaning of CPR r.44.13(1)(a). He invited the court to make a declaration to this effect, exercising its discretion under CPR r. 3.1(2)(m), which empowers the court to "take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…"

Mr Adams argued that claims in tort for assault and/or battery are actionable per se; in other words, there is no need for claimants to prove that loss or damage was suffered as a result – and the claimants were not seeking to prove loss or damage, since they had expressly renounced any claim for aggravated or special damages or any claim for PSLA beyond £1.  The court should look at the substance, not the form, of the claim and this was essentially a claim for declaratory relief, not a claim for compensation. 

The claimants argued that this was a pleaded claim for damages for personal injury, and conceded that, had it been a claim just for a declaration, QOCS would not apply.  However, damages were expressly sought, so the claim was not for declaratory relief. 

The decision

The court exercised its case management jurisdiction to make a declaration that QOCS applied, rejecting the claimants' argument that it was premature to deal with the QOCS issue since the claim could be amended to seek substantial damages and/or to remove the phrase "for vindicatory purposes".  This phrase, the court found, did not diminish the status of the claim, as a claim for damages for personal injury, and should be treated as "mere surplusage".  Even if "vindicatory damages" was a class of damages known to English law, the claim made in these proceedings was still for personal injury.

The expression "damages…for personal injuries"' in CPR r.44.13(1)(a) should be given a broad interpretation. Just because the claim made sought an equivalent remedy (nominal damages) to a claim for non-injurious assault/battery does not mean the claims are interchangeable. This is a claim for personal injury.  The pleadings are sufficient to support the claim, set out the necessary ingredients of a claim for damages for personal injury and contain nothing inconsistent with such a claim. Contrary to the defendant's submissions, there was no difference between the form and substance of the claim. The court must focus on whether the claim is for damages for personal injuries, and not on the cause of action that supports the claim. Nor was the claimant's intention in bringing the claim relevant. As Lord Bingham stated in Ashley, "…it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well-recognised claim in tort".

The court accepted the claimant's submission that the position here was no different to a claimant who, for whatever reason, chose to limit the damages sought.  Claimants might choose to do so for several reasons, such as to limit the costs of the claim, the need to obtain expert evidence, or the court fee, to take account of the defendant's limited means, or (such as in this case) because they wish to vindicate their rights by seeking a nominal award. 

The public policy rationale behind QOCS was an attempt to rebalance the scales in favour of claimants following the abolition of recovery of CFA success fees and ATE insurance premiums.  The defendant had argued that, in this case, there was no inequality of arms as the claimants were supported by crowdfunding and were pursuing an uninsured individual defendant.  However, the court concluded that, simply because a particular case fell outside that paradigm, it was not good reason to disapply QOCS.

Commentary

We do not know whether this case management decision will be appealed. If permitted to stand, this will be an unwelcome decision for defendants, who tend to prefer the scope of QOCS rules to be given as narrow an interpretation as possible.  However, this decision was reached by a close analysis of the claimants' pleadings. As such, how the principles derived from this case apply in other cases will be very fact sensitive.  Defendants faced with claims for nominal damages should consider carefully how the claim is framed as it was common ground in Clark that a claim for declaratory relief only would not be subject to QOCS. Clark also leaves open the question of whether a similar claim might be ruled an abuse of process; that point expressly not being taken by the defendant in this case.

Secondary Victims in personal injury claims

The outcome of the Supreme Court's decision in the case of Paul v Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed (Paul), which was handed down on 11 January 2024, was awaited with bated breath. Many were calling for a reform of the current legislation relating to secondary victims, a development some said society was crying out for, particularly as it has been over 30 years since the Hillsborough disaster, out of which the leading authority in this area (prior to the subject cases) arose.

What is a secondary victim?

A secondary victim as stated in the case of Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310, [1991] 11 WLUK 392 (Alcock) is a Claimant who is 'no more than the passive and unwilling witness of injury caused to others" [para 411A]. To put this in practical terms, if a person is injured by slipping on a wet floor, they are the primary victim. A secondary victim would be a person who witnessed the incident and suffered a psychiatric injury as a result.

Where were we before?

Alcock was the leading authority for secondary victim claims and set down the requisite parameters that must be met for a claim to succeed. These were:

(i)  a marital or parental relationship between the claimant and primary victim
(ii) the injury complained of arose from a sudden shock to the claimant's nervous system
(iii) the claimant was either present at the scene of the accident or the aftermath
(iv) the injury arose from witnessing the death of, or extreme danger to, the primary victim
(v) there was a close temporal connection between the event and the claimant's perception of it.

The background to the appeals

In the case of Paul, Mr Paul died from a heart attack while shopping with his two young daughters aged 9 and 12. His daughters proceeded to bring secondary victim claims against the hospital where Mr Paul had received treatment for acute coronary symptoms some 14 months prior to his death. They alleged the hospital had been negligent at that time for failing to carry out a coronary angiography which, they claimed, would have identified their father's coronary artery disease. If identified, this could have been successfully treated by coronary revascularisation. Both claimants claimed damages for the psychiatric injuries which was alleged to have been caused by witnessing his death.

In the case of Polmear, the primary victim was Esmee Polmear, who was 7 years old when she died from pulmonary veno-occlusive disease in July 2015. The defendant NHS Trust admitted that her condition should have been diagnosed by mid-January 2015 when she was under investigation by the hospital. The claimants were her parents. Her father had been present immediately before her collapse, and shortly afterwards, when he found her unconscious with a teacher trying to resuscitate her. Her mother arrived and witnessed the resuscitation attempts, which were unsuccessful. The paramedics arrived and took over, later transporting Esmee to hospital via ambulance.  Esmee was pronounced dead at the hospital.  Both parents travelled in the ambulance with Esmee. As a result of those events, both parents sought damages from the NHS Trust as secondary victims for post-traumatic stress disorder and major depression.

In the case of Purchase, Evelyn Purchase, aged 20, died from severe pneumonia in April 2013. Three days prior to her death, she attended an out of hours clinic and the doctor failed to diagnose her condition and sent her home with antibiotics and anti-depressants. The claimant was her mother who ultimately found Evelyn lying motionless in her bed. After being declared dead by paramedics who had attempted resuscitation, Evelyn's mother found a missed call and voicemail from her daughter that was 5 minutes long and was the sound of her dying breaths. She sought damages for post-traumatic stress disorder, severe chronic anxiety, and depression, which she alleged was caused by the defendant's negligence.

Issues before the court

All three appeals concerned tragic situations arising out of alleged clinical negligence and the key issue for the court to decide was whether the secondary victim claims should succeed where the claimants' injuries were caused by their witnessing the death or injury of a loved one from a medical condition which the defendant had negligently failed to diagnose and treat. This also provided the court with an opportunity to review the principles set down in Alcock.

What was decided?

In short, all three appeals were dismissed as the court concluded that the clinicians in each case did not owe a duty to their patients' relatives to prevent them suffering harm as a result of witnessing the death of their relative, such death caused by the respective clinicians' medical negligence.

Whilst the judgment primarily concerns clinical negligence claims, the court did use the opportunity to clarify some of the Alcock principles, which do have a bearing on all secondary victim claims.

Secondary victims will need to show that it is reasonably foreseeable that the negligence of a defendant could cause an injury, but the requirement to prove that the incident was horrifying or that it caused sudden shock has been removed. As the court stated: "it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.

Summary

The effect of the decision is that it will now be almost impossible for a secondary victim claim to succeed in the context of clinical negligence (albeit the court did acknowledge there may be situations where it such claims could arise). Nevertheless, for personal injury claims the position remains much as it was prior to this decision but with some further welcome clarification.

In summary, therefore, for a personal injury secondary victim claim to succeed, the following principles will also apply:

1. A close tie of love and affection to the primary victim
2. Proximity to an accident or its immediate aftermath,
3. Direct perception of an accident or its immediate aftermath,
4. that the individual suffered a psychiatric injury which was caused or induced simply by witnessing the accident
5. It is reasonably foreseeable that a person of normal fortitude may suffer a psychiatric injury by witnessing the accident