TORRINGTON RUGBY FAN WINS INJURY COMPENSATION AT TRIAL
A Torrington rugby fan has secured compensation for personal injury suffered in a London pub. John Pledger of Torrington, North Devon was at the Barmy Arms in Twickenham with his family, having a quiet pint after watching a rugby match in December 2009. He went to use the gents and slipped on water on the floor, suffering tendon damage to his right knee.
He made a no win – no fee compensation claim through our New Deal scheme which guarantees that our clients receive 100% of the injury compensation awarded to them.
The injury claim was taken to court by Mike Clarke, injury partner at Slee Blackwell in Bideford, who said,
“There were two unusual aspects to this compensation claim; the first was the extraordinary behaviour of the landlord of the pub, who tried to manhandle Mr Pledger from the premises after the accident and refused to call an ambulance for him, even though he was obviously seriously injured and unable to walk. The second was the refusal of the landlord and his insurers to accept that there had been any liquid at all on the floor, despite us showing them clear photographs of it, taken at the scene of the accident by a witness within minutes of the accident happening. Frustratingly, the insurers flatly refused to negotiate on this injury claim, which meant we had to take it all the way to a trial. When we were about half-way through the hearing, the defendant’s insurers finally agreed to a negotiated settlement, giving Mr Pledger the fair compensation we had fought to get for him for over 2 years.”
Mike Clarke is happy to give free initial advice about injury claims. He can be contacted on Bideford (01237) 427921 or at michael.clarke@sleeblackwell.co.uk
Toby Halliwell was Counsel acting for the successful Claimant
The Department for Business, Innovation and Skills has declared the new Tribunal compensation limits, which have been increased in line with RPI, and will take effect from 1st February 2012.
The main increases are:
- a week’s pay – £430 (currently £400)
- maximum compensatory award – £72,300 (currently £68,400)
See Statutory Instrument Here: http://www.legislation.gov.uk/uksi/2011/3006/made
Toby Halliwell
http://www.unitystreetchambers.com/barrister/tobyhalliwell.php
R v C – Bath Magistrates Court
In this case a successful manager of a high end car company was caught speeding at 111mph on a dual-carriageway near Bristol.
The Magistrates Court Sentencing Guidelines provide that on roads with a speed limit of 70mph, if caught speeding at 101-110mph the court’s starting point is to disqualify for 7 – 56 days or endorse the Defendant’s license with 6 penalty points (speeding at 111mph is above the maximum speed shown on the chart).
Either of these punishments would have had serious consequences for this Defendant. Even if he had received the minimum punishment of 6 penalty points his employers would not have insured him to drive high end cars. As this was a fundamental aspect of his job he would have been dismissed.
Robert Welch represented the Defendant and persuaded the court to go outside of their Guidelines in this particular case. Although there was no particular explanation for travelling at such speed, it was maintained that the punishment suggested by the Guidelines did not fit the crime. He argued that 5 points and a hefty fine would be sufficient punishment and serve as a reminder to the Defendant of the potentially serious consequences he would face if he were to breach the rules of the road again.
The Magistrates agreed, fining the Defendant and endorsing his license with 5 penalty points. This ensured that he was able to remain in employment.
http://unitystreetchambers.com/barrister/robertwelch.php
The European Court has handed down an unusually sensible judgment. While that might be news in itself, the subject matter is also worth reporting. It has said that E-Bay and other online market places may be liable in damages if they don’t control the sale of counterfeit and ‘grey’ goods on their websites. The decision, reported on BAILI at , will make it more dificult for people to deal in such goods, as E-Bay is going to have to police its auctions carefully if it wants to avoid heavy penalties. The decision should make it easier to buy safely from online auction sites, as there should be less counterfeit material around.
In Sean Robert Grinyer v Plymouth Hospital NHS Trust (28th October 2011. Unreported) His Honour Judge Cotter QC, sitting at Plymouth County Court, assessed damages for personal injury under s.13 of the Data Protection Act 1998 on a conventional common law basis and held that a claim for aggravated damages could be sustained thereunder, but not exemplary damages.
The Claimant (represented by John Isherwood of Unity Street Chambers) brought an action against the Defendant after unauthorised disclosure of his personal medical data, in or about December 2007.
The Claimant’s then partner had unlawfully accessed his medical records in the course of her employment as a nurse and thereby committed a breach of the Act. This and the handling of his resultant complaint caused a 4 ½ year exacerbation of a pre-existing paranoid personality disorder and prevented him also from accepting an offer of employment.
HHJ Cotter was satisfied such exacerbation constituted an injury which had given rise to direct consequential loss and accordingly fell within the ambit of “pecuniary loss” identified by Buxton LJ in Johnson v The Medical Defence Union [2007] EWCA Civ 262 (para 24) and further held that compensation for damages or distress under s.13 (1) and (2) respectively of the Act should be assessed on a common law basis, with any reduction because recovery was statute-based artificial and wrong.
The claim for aggravated damages however failed, as there was no evidence of malicious action or exceptional misconduct, in a litigation context, on the part of the Defendant.
£12,500 was awarded for exacerbation of the Claimant’s pre-existing condition and £4800 for loss of earnings on the premise that he had been offered 6 months work but in light of the medical evidence, viz that he would have been unable, probably, to sustain employment for any length of time, likely to have held a job down for only 8 weeks also.
John Isherwood
http://www.unitystreetchambers.com/barrister/johnisherwood.php
Business Secretary Vince Cable has announced the government’s proposals for what is said to be the biggest shakeup of employment law for decades.
Also published this morning is the government’s Response to the Consultation on Resolving Workplace Disputes.
The core proposals are:-
- unfair dismissal qualifying period to be increased from one to two years
- compulsory lodgment of all claims with Acas, in order to attempt mediation, before they can be lodged with the tribunal
- consultation on the introduction of “protected conversations”, save as regards protect discriminatory acts
- a call for evidence, with a view to consultation, on reduction of the minimum period for redundancy consultation to 60, 45 or 30 days.
- Some other proposals, which have not been previously publicised are:-
- options for a ‘rapid resolution scheme’, for simple claims to be settled within three months
- amendment to s147 of Equality Act 2010, to clarify that compromise agreements may be used to settle discrimination claims
- complaints about breach of employment contract (Parkin v Sodexho) to be removed from the remit of whistleblowing law
- financial penalties to be introduced for employers who breach employment rights, payable to the Exchequer, and subject to a discretion exercisable by Employment Judges
- a wide-scale review of employment tribunal rules of procedure, to be led by Underhill J (who is due to step down as President of the EAT at the end of next month) – to include consideration of changes to costs and desposit orders
- Employment Judges to sit alone in unfair dismissal cases
- CRB checks to be transferrable, removing the need for a fresh application when moving jobs
- maternity and paternity provision to be updated, with greater emphasis on involvement for fathers
And the government is still looking at the option of compensated no-fault dismissals for micro-businesses, but has made no proposals at this stage. According to an article in the Financial Times published before Vince Cable’s speech, the government intends to call for evidence on the implications of such no-fault dismissals.
Key links:-
Toby Halliwell
http://www.unitystreetchambers.com/barrister/tobyhalliwell.php
In Taylor v Brown, 7th November 2011, Bristol County Court (unreported), it was claimed that a horse which had been bought privately from the Defendant had a tendency to dangerously rear and was not “good to hack and handle [and] a perfect project for a teenager” as it had been described.
The Defendant argued that the horse had never reared to such an extent that was now being described and this dangerous behaviour was down to mismanagement.
Prior to sale the horse had undergone a 5 stage vetting procedure. During this procedure the Defendant vendor was required to disclose if the horse had any behavioural abnormalities.
The Claimant’s equine expert stated that the rearing shown by this particular horse was “learned behaviour” and was not due to the Claimant’s mismanagement of the horse after sale, but rather its training when in the Defendant’s hands.
The Judge found that rearing was a behavioural abnormality and thus if present, must be declared during the vetting procedure. Furthermore, he found that the Defendant had misjudged the level of rearing the horse had shown prior to sale. This behaviour should have been disclosed to the Claimant and the vet. The Defendants’ failure to do so meant that they were in breach of the contract and it was rescinded.
The Defendant was ordered to collect the horse and pay back the amount paid for the horse with interest and costs.
Robert Welch
In Sean Robert Grinyer v Plymouth Hospital NHS Trust (28th October 2011. Unreported) His Honour Judge Cotter QC, sitting at Plymouth County Court, assessed damages for personal injury under s.13 of the Data Protection Act 1998 on a conventional common law basis and held that a claim for aggravated damages could be sustained thereunder, but not exemplary damages.
The Claimant brought an action against the Defendant after unauthorised disclosure of his personal medical data, in or about December 2007.
The Claimant’s then partner had unlawfully accessed his medical records in the course of her employment as a nurse and thereby committed a breach of the Act. This and the handling of his resultant complaint caused a 4 ½ year exacerbation of a pre-existing paranoid personality disorder and prevented him also from accepting an offer of employment.
HHJ Cotter was satisfied such exacerbation constituted an injury which had given rise to direct consequential loss and accordingly fell within the ambit of “pecuniary loss” identified by Buxton LJ in Johnson v The Medical Defence Union [2007] EWCA Civ 262 (para 24) and further held that compensation for damages or distress under s.13 (1) and (2) respectively of the Act should be assessed on a common law basis, with any reduction because recovery was statute-based artificial and wrong.
The claim for aggravated damages however failed, as there was no evidence of malicious action or exceptional misconduct, in a litigation context, on the part of the Defendant.
£12,500 was awarded for exacerbation of the Claimant’s pre-existing condition and £4800 for loss of earnings on the premise that he had been offered 6 months work but in light of the medical evidence, viz that he would have been unable, probably, to sustain employment for any length of time, likely to have held a job down for only 8 weeks also.
John Isherwood
How should a list of issues for an employment tribunal hearing be drawn up? Are they binding on the Tribunal at the final hearing?
The EAT was critical of the way in which a list of issues had been compiled on Price v (1) Surrey County Council (2) Governing Body of Wood Street School
The (lay-represented) Claimant was constructively dismissed but failed to establish whistleblowing . The EAT considered a list of issues drawn up for the employment tribunal hearing, appending that list to its Judgment to illustrate its concerns.
The EAT said that lists of issues should distinguish between the central issues “e.g. unfair dismissal and detriment due to a protected disclosure” and the key factual allegations. There was a failure in the list prepared in the present case to discriminate between significant factual issues and those found by the employment tribunal to be ‘utterly trivial’.
The EAT observed “even where lists of issues have been agreed between the parties, they should not be accepted uncritically by employment judges at the case management stage. The Judge has a duty to ensure that the case is clearly and efficiently presented. Equally the tribunal which hears the case is not required “slavishly to follow the list presented to it”.
Noting that the case was extended by dealing with peripheral, exaggerated and unsustainable allegations, the EAT called for the provision of basic legal help to unrepresented litigants, in the interests of the efficiency and economy of the justice system, as well as accessibility.
Also of relevance to practitioners is another recent decision of the EAT (Langstaff J) in Land Rover v Short in which the (represented) parties had a legitimate disagreement as to whether ‘bumping’ was within the list of issues. Again, it was noted “the responsibility remains with the Tribunal to deal with the issues which the parties are putting before it, and to identify what they are”.
Toby Halliwell
The New Ogden Tables (7th Ed) are out – here’s the link – all very exciting.
Still no change to the discount rate of 2.5%.
Still no clear guidance on application of the Ogden 6 Disability Discount, though there is reference to an article which elucidates on Conner -v- Bradman.
Still no specific tables for retirement dates other than 5-yearly intervals – 55/60/65 etc – such that interpolation between those ages is still required in other cases.
http://www.gad.gov.uk/Documents/Other Services/Ogden Tables/Ogden_Tables_7th_edition.pdf
Toby Halliwell
