Child injured at bonfire site morning after bonfire.

This is an interesting case. Mr Justice Stephens accepted the novel Defence of the local Authority that they were prevented from accessing a Bonfire site (which was clearly their property) to make it safe, due to the threat of intimidation/violence from those at the site of the smouldering bonfire.

Unfortunately a 12 year old child suffered a very serious eye injury from a firework left at the site. His case was dismissed. You can access the Judgement here:

http://www.courtsni.gov.uk/enGB/Judicial%20Decisions/PublishedByYear/Documents/2012/ [2012]%20NIQB%2054/j_j_STE8508Final.htm

EXTENSION OF TIME TO SERVE PLENARY SUMMONS

Mr Justice Herbert in Aherne v MIBI extended time to serve to serve a 2001 Plenary Summons where the the prejudice to the Applicant far outwighed any prejudice against the Respondent had the application been declined.

There is extensive commentary on the precedent case law in the judgement here: Click to read more.

APPLICATION TO SET ASIDE THIRD PARTY NOTICE- Delay

In O’Halloran v Fetherson & Ors Mr Justce McEochaidh refused an application to set aside Third Party Proceedings. Holding that the delay on behalf of the defendant who issued the proceedings not to be unreasonable, and that there was little prejudice to the Third Party, the application was refused. Although its not a PI case it is useful. Click to read more The Judgement.

UK Insurers prepare for G-Day, as Gender equality rules kick in.

1. Article 5 of Council Directive 2004/13/EC of the 13th December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (“The Directive”) regulates the use of actuarial factors related to gender in the provision of insurance and other related financial services. Article 5 (1) provides that, for new contracts concluded after the 21st December 2007, the use of gender as an actuarial factor in the calculation of the premiums and benefits must not result in differences in individuals premiums and benefits (“The Unisex Rule”). Article 5 (2) provided for derogation from this rule by allowing member states to maintain proportionate differences in individuals premiums and benefits were the use of gender was a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data.
2. The European Court of Justice (“ECJ”) was asked to rule on a challenge from a Belgian Consumer Association asking whether the exemption in Article 5 (2) of the Directive was compatible with the prohibition under discrimination on the grounds of gender enshrined as a Fundamental Right of the European Union. In the case the ECJ ruled that exemption was invalid. It granted a transitional period of relief for implementation. The transitional period ends on the 21st December 2012. From then, it will be unlawful to use gender related factors for determining premiums and benefits under insurance policies. National Governments of member states who opted to apply Article 5 (2) of the 2004 Directive (of which the UK is one) are under an obligation to change domestic law so that with effect from no later than the 21st December 2012, it complies with the ECJ decision.
3. In December 2011 HM Treasury launched a consultation on the Government’s proposed implementation of the ECJ Judgment.
4. In January 2012 the European Commission published guidelines on the application of the Directive in light of the Judgment of the ECJ.
5. The Judgment was absolutely clear and certain as regards new contracts, but some guidelines and clarification appear to be required in respect of what actually constitutes a new contract where there is an existing relationship between the parties, as if so often the case when dealing with insurance renewals.
6. Paragraph 9 of the European Commission guideline states “The Directive does not define the concept of a “new contract”, nor does it contain any reference to national laws as regards the meaning to be applied to such terms. This concept should therefore be regarded, for the purposes of application of the Directive, as designating an autonomous concept of European Union Law which must be interpreted uniformly throughout the union. This uniform interpretation corresponds to the aim of the Directive in the insurance field, which is to implement the unisex rule, after the expiry of the transitional period. The concept of a “new contract” referred to in Article 5 (1) is essential for the practical implementation of this provision. Diverging interpretations of this concept based on national contract laws would create a risk of different transitional periods delaying the comprehensive application of the unisex rule and also of an uneven playing field for insurance companies. This would undermine the objective pursued by the Directive of comprehensively guaranteeing the equal treatment of women and men across member states in relation to individuals’ insurance premiums and benefits from the same date and expressed in its Article 5 (1).”
7. Paragraph 10 states “The implementation of Article 5 (1) requires a clear distinction between existing and new contractual arrangements. The distinction must meet the need for legal certainty and be based on criteria that avoids undue inference with existing rights and preserve the legitimate expectations of all parties. The approach is in line with the Directives objective of preventing a sudden readjustment of the market by restricting the application of the unisex rule only to new contracts.”
8. Paragraph 11 states “Accordingly, the unisex rule pursuant to Article 5 (1) shall apply whenever (a) a contractual agreement requiring the expression of consent by all parties is made, including an amendment to an existing contract and (b) the latest expression of consent by a party that is necessary for the conclusion of that agreement occurs as from the 21st December 2012.”
9. Paragraph 12 states that “Consequently the following should be considered as new contractual agreements having therefore to comply with the unisex rule;
   (a) Contracts concluded for the first time as from the 21st December 2012. Therefore, offers made before the 21st December 2012 but accepted as from that date will need to comply with the unisex rule;
   (b) Agreements between parties, concluded as from the 21st December 2012, to extend contracts concluded before that date which would otherwise have expired.”
10. Paragraph 13 of the guidelines does however set out situations which should not be considered as constituting a new contractual agreement. They are:-
    “(a) The automatic extension of a pre-existing contract if no notice e.g. a cancellation notice, is given by a certain deadline as a result of the terms of that pre-existing contract;
    (b) The adjustments made to individual elements of an existing contract, such as premium changes, on the basis of predefined parameters where the consent of the policyholder is not required;
    (c) The taking out by the policyholder of top-up or follow-on policies whose terms were pre-agreed in contracts concluded before the 21st December 2012, where these policies are activated by a unilateral decision of the policyholder;
    (d) The mere transfer of an insurance portfolio from one insurer to another which should not change the status of the contracts included in that portfolio.”
11. Further to the consultation process of HM Treasury, the Government produced a response in March 2012 on the issue of the definition of a “new contract” the Government whilst understanding the desire for certainty on the issues confirmed that it could not provide further clarity on the interpretation of the Directive with any authority. The response stated “As there is no definition of a new contract between the gender Directive, it will ultimately be for the Courts to determine whether the definition used by member states is in keeping with the Directive and the ECJ Judgment. Any further guidance provided by Government would not necessarily align with decisions the Courts may make in future and would therefore only serve to provide false certainty to industry.”
12. The Government did however “acknowledge and agree with the European Commission’s view that significant disparity in how member states implement Judgment would not be beneficial and did recommend therefore that the guidelines produced by the Commission may be considered useful in helping to align interpretation of insurers across member states.”
13. The Government did not believe that there would be a significant problem in the United Kingdom “Because national law in this area is broadly in line with the interpretation suggested by the Commission.”
14. HM Treasury did acknowledge that some respondents noted that the treatment of automatic extensions to an existing contract (tacit renewals) may be one area where there is divergence.
15. Further in response the Government confirmed that it intended to implement the ruling by repealing paragraph 22 of the Schedule 3 of the Equality Act 2010 which will remove from legalisation the exemption from the unisex rule. This mirrored the exception in the gender Directive which had been outlawed by the European Court of Justice in March 2011.

NEGLIGENCE AND THE BURDEN OF PROOF

In Mokom .v. Dublin Bus [2010] the High Court dismissed a claim for damages against Dublin Bus taken by a pedestrian who suffered life threatening brain injuries after she was struck by a bus.

In this action the plaintiff appears to have stepped onto the road and been struck by the bus. She claimed that Dublin Bus was negligent in that the bus was travelling an excessive speed that it failed to stop, swerve or slow down to avoid the collision. She also further claimed that the bus failed to keep a safe distance from her and that there was a failure to keep a proper lookout for her presence on the roadway.

Dublin Bus argued the plaintiff was the author of her own misfortunate and pleaded contributory negligence, that the plaintiff walked into the bus, failed to look before stepping off the footpath and onto the road, gave no indication of her intention and had no reasonable regard for her own safety. Notwithstanding the very serious injuries (the plaintiff suffered a brain injury) Mr Justice Quirke in agreeing to dismiss the action said it was inescapable that the plaintiff had been walking along a path when she suddenly turned and walked into the side of a bus within the space of three seconds, that it was regrettable that she could not remember the accident.

The plaintiff’s claim was dismissed.

The UK Supreme Court whilst holding that it has the jurisdiction to strike out a claim for abuse of process has declined to do so in an injury action where the claimant accepted that he had made statements of truth which he knew to be false and where the trial Judge had held that the evidence was sufficiently quoted to sustain a claim of fraud not only applying to civil standard but also the criminal standard.

The case of Fairclough Holmes Limited (Appellant) v Summers (Respondent) concerns an accident at work. The claimant suffered a fracture to his right scaphoid and a complicated ankle fracture.

In August 2007 the County Court gave Judgment for the claimant on liability with damages to be assessed at a later date. Between October 2007 and September 2008 the Defendant Appellant subjected the Claimant to covert surveillance which revealed that the Claimant was grossly exaggerating the effect of his injuries and incapacity to work.

The insurers did not show their hand at that stage and by December 2008 the Claimant served a Schedule of Loss claiming damages of £838,616.00 including a claim for loss of earnings up to October 2008. Having received that claim, the Defendant Appellant disclosed its surveillance evidence to the Claimant’s representatives and amended its Defence asserting that the claim was dishonestly exaggerated and should be struck out in its entirety. The Claimant subsequently served two further Schedules of Loss valuing the claim at a greatly reduced figure of approximately £250,000.00. All the Schedules of Loss were supported by “Statements of Truth”.

The trial on damages took place in January 2010.

The Claimant did not challenge the surveillance evidence. The Judge held that there was no doubt that he had suffered serious fractures. The ankle injury had required two arthrodesis procedures. The Judge found that the evidence established that the Claimant committed fraud and had deliberately lied to medical experts and the Department of Work & Pensions. The Judge having considered the evidence found that the Plaintiff would have been fit for work since the end of June 2007. The Judge awarded the Plaintiff damages in respect of loss of earnings up to that point in accordance with his findings. The total award to include general damages of £18,500.00 was £88,716.76.

The Defendant Appellant submitted that the Court had power to strike out the claim in its entirety on the grounds that it was tainted by fraud and was an abuse of process.

The Judge at first instance and the Court of Appeal held that they were bound be decisions of the Court of Appeal in Ul-Haq v Shah [2009] EWC CIV 542 and Widlake v BAA [2009] EWC CIV 1256 to refuse the Application on the ground that the Court had no power to strike out a statement of case in such circumstances.

The Supreme Court which unanimously held that the Court does have jurisdiction to strike out the claim for an abuse of process but in this instance chose to decline to exercise its power.

The Judgement was given by Lord Clarke. The Court considered in detail the provisions of the Civil Procedure Rules and the inherent jurisdiction of the Court which existed prior to those Rules coming into operation.

Having found that the Court did have the power to strike out a statement of case it did go on to rule that it should only exercise the power in very exceptional circumstances.

“The power to strike out a claim at the end of a trial should only be exercised if the court is satisfied that the party’s abuse of process was such that he had thereby forfeited the right to have the claim determined. This is a largely theoretical possibility. It must be a very rare case in which, at the end of a trial, it would be appropriate for the Judge to strike out a case rather than dismiss it in a Judgement in the merits in the usual way. The same is true where, as in this case, the court is able to assess both the liability of the Defendant and the amount of that liability.”

Moreover the Court considered that the conclusion was compatible with Article 6 of the European Convention on Human Rights stating that “it will only strike out the claim if this is a proportionate means of achieving the aim of controlling the process of the court when dealing with the cases justly. It is very difficult to think of circumstances in which such a measure would be proportionate. However they might include a case where there had been a massive attempt to deceive the Court but the award of damages would be very small”.

The Court rejected the submission on behalf of the Defendant insurers that unless exaggerated claims are struck out dishonest Claimants will be not be deterred. The Court insisted that there are many other ways in which deterrents can be achieved including making Orders for costs, reducing interest, proceedings for contempt in criminal proceedings and in appropriate cases where adverse inferences can also be drawn against the Claimant.

Ultimately the Court found that although the Claimant Respondent accepted making Statements of Truth which he knew to be false, as a matter of substantive law the Court found he did suffer significant injury as a result of the Defendant’s breach of duty and that it would not be proportionate or just to strike the claim out. The Supreme Court dismissed the Defendant Appellant’s Application.

The Judgement has typically been widely acclaimed by Claimant Lawyers. It is clearly a blow to Insurers who rightly have invested huge sums of money to combat fraud.

Next up for this blog is an analysis of this decision and the potential for a challenge to Section 26 of The Civil Liability and Courts Act 2004, in Ireland.

IRL recent cases in PI litigation-part 1

REMOTENESS AND CAUSATION

In the case of Ward .v. Sheridan [2010] IEHC 308 Lavin J dismissed the husband’s claim for damages. The husband underwent a vasectomy because of the injuries to his wife and an accident had made it very dangerous for her to become pregnant (she lost a baby in the accident). The plaintiff’s claim was dismissed.

IRL recent cases in PI litigation- part 3

CONCURRENT WRONG DOER

The very recent case of Lindsay .v. Finnerty and Others [2011] IEHC 403 is interesting. Peart J examined the law relating to concurrent wrong doer. It relates to the so called one per cent rule. In this case there were two impacts in succession. It was difficult to establish which impact was responsible for which injuries in the circumstances notwithstanding the insured party was guilty of having been 20% responsible with the uninsured party being 80% responsible, the insured was considered to be a concurrent wrong doer. In the circumstances the plaintiff was entitled to recover entirely from the insured motorist who was 20% responsible.

IRL recent cases in PI litigation – part 4

PASSENGER IN A DRINK DRIVER VEHICLE

The case of Hussey .v. Twomey and Others [2009] IRSC 1 is a decision of the Supreme Court and very important decision in respect of persons injured whilst passengers in a vehicle driven by driver under the influence of drink or drugs. In that case the Supreme Court upheld the previous decision whereby the passenger was found to be 40% negligent in allowing himself to be carried in the vehicle in the circumstances. The passengers damages were assessed and automatically reduced by 40% in the circumstances. The level of knowledge and the conduct of the parties leading up to the incident will very much determine what level of reduction is to be made. This is a very useful case however.

IRL Developments re cap on General Damages

DEVELOPMENTS IN RESPECT OF THE SO CALL “CAP” ON GENERAL DAMAGES

In Sinnott .v. Quinnsworth Limited [1984] ILRN 523 the Supreme Court in Ireland indicated that when approaching general damages for catastrophic injuries the Court should bear in mind that “A limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which pertain in our society”.

The Court in the Sinnott condemned a Jury award of IR£800.000.00 Punts that the plaintiff had been rendered quadriplegic. General damages had been amended from IR£800,000.00 Punts to IE£150,000.00 Punts.

That was in 1984 and was considered to be an appropriate limit or cap.

In the case of McEneaney .v. Monaghan County Council [2001] IEHC 14 the Court raised the so call cap and was of the view that a new yard stick for general damages in such cases was €300,000.00 although the Court did observe that in this regard it might be erring on the side of conservatism.

In the case of N .v. M which involved sexual assault over an extended period culminating in rape a Jury in the High Court awarded €600.000.00, reduced by the Supreme Court to a lessor sum of €350,000.00 (2005 case).

The Court in N .v. M went to great lengths to examine the factors which must be taken into consideration when dealing with such an award in a catastrophic injury case.

In Myles .v. McQuillan [2007] IEHC 333 the Court held that in assessing general damage in a catastrophic injury case the Court must consider the full award on a global basis taking into account any additional awards of damages (special damages). In that case the Court awarded €125,000.00 for general damages in amongst the total award of €502,700.00 for damages.

A recent decision in the High Court in Yun .v. MIBI and Others is interesting. It involved a road traffic collision where the plaintiff sustained catastrophic personal injuries. The High Court was asked to assess the damages. Quirke J observed that the Courts suggested limit in general damages might more accurately be described as a “guide” rather than an “cap” and further that general damages awards should reflect economical realities. Whilst that might appear to suggest that a sealing be placed in times of economic difficulty it is important to note that the Judge immediately qualified the point by emphasising the importance of life expectancy as a factor to be considered. The Court awarded a figure of €450,000.00 for general damages.