General Liability newsletter – November 2020

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

This month we look at recent cases and government updates regarding: Practice Direction 51ZA, the importance of considering all the circumstances of the case when deciding whether to exercise its discretion to grant relief from sanctions and more.

We are not amused - employer not vicariously liable for practical joke at work

In April 2020 we reported on two Supreme Court decisions which we suggested might indicate unwillingness of the Courts to extend the existing scope of vicarious liability.  The High Court has rejected a claim that sought to require employers to assess the risk of injury arising from "horseplay" at work.

Hard to stomach - the facts and opinions contained in a medical report which substantially complies with the Practice Direction to Part 35 will be accepted unless challenged through contrary or undermining factual evidence. 

In Peter Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) the High Court considered an Appeal by the Claimant from a County Court decision to dismiss his claim for damages arising from gastric illness whilst on holiday in Turkey.

The Claimant relied upon a medical report from Professor Pennington to establish that the cause of his illness was food provided by the hotel in which he was staying, rather than any other cause. 

Court of Appeal emphasises the importance of considering all the circumstances of the case when deciding whether to exercise its discretion to grant relief from sanctions. 

In Barry Cable v Liverpool Victoria Insurance Co Limited (Court of Appeal, 31 July 2020) the Claimant had sustained injury in a road traffic accident on 1 September 2014. On 24 September 2014 his solicitors issued a Claim Notification Form in the RTA Portal. Liability was admitted on 2 October 2014. 

A medical report on 28 November 2014 indicated that the Claimant's injuries were likely to be minor, but there was no definitive prognosis and the report recommended a further report from a neurologist. The Claimant was seen by a neurologist in April 2015 who provide a report to the Claimant's solicitors in January 2016.  The report said that the Claimant's condition had deteriorated and that the Claimant (who earned £130,000 per year) was unable to work. His employment was terminated in December 2015.

Solicitors who have charged their client more than the sum that might be recovered from an opponent in litigation must have secured informed consent first

The Claimant was a pillion passenger who was injured in a road traffic accident with a car. 

She instructed the Defendant solicitors who entered into a CFA with the Claimant. The client care letter estimated the costs of bringing the claim to be £2,500 plus VAT and disbursements. Although the agreement provided for a cap of 25% of the damages recovered for a success fee, the client care letter limited overall solicitors' charges only in the event that the claim fell within the small claims track. 

Practice Direction 51ZA - extensions not extended

CPR 3.8(4) allows the parties to litigation to agree extensions of up to 28 days to the time allowed by a rule, Practice Direction or court order which specifies a consequence for failure to comply. 

To help alleviate the adverse effects of the Coronavirus pandemic on the administration of justice, Practice Direction 51ZA was introduced on 2 April 2020. It stated that so long as the Practice Direction was in force, CPR 3.8(4) was revised so that the parties could agree extensions of up to 56 days.

We hope you enjoy this month's edition