PI Newsletter August 2018 – Travel Edition

Case Law Update
By Michael Dougherty and Rosalind Young

Irani v O’Duchon – QBD 18.07.18 – ex tempore judgment of David Pittaway QC

Significance

A claimant in an RTA was awarded damages including sums to reflect redundancy and loss of immigration status in the UK.

Facts

The Claimant was hospitalised for a significant period with injuries to his leg and elbow arising from a motorbike accident in 2013. During a phased return to work, his employer shut down and he was made redundant, albeit the Company re-started some three months later. It took 6 months for the Claimant to find new employment.

The Claimant had stayed in the UK since 2010 on an employer sponsored visa, with leave to remain until 2020. Due to the loss of continuity of employment, the Claimant would be unable to renew his visa or apply for leave to remain. Returning to his home country of India would result in a reduction of income. Evidence of this income was not adequate to support a loss calculation using a multiplier and multiplicand approach.

Held

A total damages award of £404,000 included PSLA, loss of earnings to date relocation costs, and, by a broad brush approach, a Smith v Manchester award of £30,000 reflecting the issues finding new employment, and an award of £150,000 reflecting probable loss of future earnings in a different country.

Pinkus v Direct Line [2018] EWHC 1671 (QB)

Significance

A claim pleaded at over £1 million was dismissed for fundamental dishonesty – but for which the Judge would in any event have awarded just £4,729.

Facts

Liability was admitted in full in respect of a collision on the M4 motorway in 2012. The Claimant’s pleaded case alleged significant psychological and psychiatric symptoms along with minor physical injuries, reliant upon a diagnosis of PTSD. The Claimant alleged that his employment was lost due to the effects on his work performance, and had been unable to work since.

In a joint expert statement, it was concluded that the Claimant had not suffered any brain injury, and in cross examination the Claimant’s expert neurologist that attribution of the symptoms was outside his expertise.

Held

In respect of the additional expert evidence in the fields of Neuropsychology and Psychiatry, the Defendant’s evidence was preferred.

The Claimant deliberately and knowingly exaggerated the index accident, and the physical and psychiatric symptoms arising. HHJ Coe noted that the Claimant’s memory was limited when asked challenging questions, but was “clear when he wished to make a point about the extent of his difficulties”. His wife was found to have provided a fabricated account, including impeding access to medical records.

The Claimant was ordered to pay all the Defendant’s costs, on the indemnity basis.

Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670

Significance

The defence of independent contractor failed in respect of a claim of vicarious liability.

Facts

A group litigation was comprised of 126 Claimants seeking damages from Barclays Bank arising from alleged sexual assaults in pre-employment medical examinations undertaken on behalf of the bank by Dr Gordon Bates. The medical examinations were undertaken by Dr Bates and the claimants were required to attend the consulting room of his home.

A preliminary issue for determination was whether vicarious liability could attach to the Bank for the actions of Dr Bates; Mrs Justice Davies had applied the two stage test derived from the 2016 cases of Cox v Ministry of Justice, and Mohamud v WM Morrison Supermarkets PLC.

The Bank appealed the application of stage 1 of the test, and averred that a complete defence to the claims arose from the independent status of the Doctor.

Held

The status of independent contractor was not a defence to the claim. The correct method is to apply the two stage test to the particular facts.

First, is the relevant relationship [as between the Bank and the Doctor] one of employment, or “akin to employment”. The five criteria in sum were adequately made out:

1. While Barclays had more means to satisfy the claims, this aspect carried little weight, albeit that Barclays were the only available source of compensation.
2. While the medical exam offered some potential employment benefit to the claimants, the principal benefit was to the Bank.
3. There could hardly be a clearer example, in the view of the court, of an activity forming a part of the business activity of the Defendant. A professional medical assessment of the physical suitability of job applicants was integral to Barclays’ operations.
4. The risk of tort was established on the particular facts.
5. The question of control was the most critical factor in the instant matter. The examinations were carried out to a standard formula set by Barclays.

The second stage, which was not subject to the appeal, affirmed that the tort was sufficiently and closely connected with the employment or quasi employment found in the first stage analysis.

Hislop v Perde [2018] EWCA Civ 1726

Significance

Fixed costs apply to low-value claims even when the defendant has waited more than 18 months to settle the claim. The claimant could not argue that the delay – even with no apparent justification – triggered an ‘exceptional circumstances’ provision set out in Civil Procedure Rule.

Facts

A road traffic accident victim had argued for indemnity costs because the case was settled out of time. In November 2014, Hislop offered to accept a settlement of £1,500 under Part 36. Perde rejected this offer initially, but later accepted it in June 2016, a week before trial.

Hislop’s costs were £2,372 by way of fixed costs up to the deadline for accepting the Part 36 offer, and £5,534 thereafter on an indemnity basis.

The County Court rejected the claim for indemnity costs, and at the initial appeal it was held that costs after the deadline for accepting the Part 36 offer should be assessed on the standard basis.

Held

Coulson LJ held that the ‘exceptional circumstances’ provision serves as a deterrent to parties delaying the acceptance of an offer. However, he said there could equally be no ‘presumption’ that a defendant’s late acceptance of a claimant’s Part 36 offer can always be regarded as exceptional.