Personal injury update

Associated Electrical Industries Ltd v Alston UK [2014] EWHC 430 affirms the new strict approach now being adopted by courts. In fact, the court in this case conceded it would have reached a different conclusion had it not been for Mitchell.

A former employee, who was exposed to asbestos at a mechanical engineering plant, developed mesothelioma (a terminal lung cancer) from which he sadly died. His widow sued Associated Electrical Industries, A, which
formerly operated this plant, but there was
some uncertainty as to whether it or Alston UK,
G, held liability as there had been various business transfers following the exposure.

In any event, and as this was a mesothelioma case, A and G settled the widow’s claim with each paying half the damages without prejudice to the claim they had against each other.

A subsequently issued against G alleging
the premises where the exposure occurred was transferred to G. A’s claim form was served
without the particulars on 20 September 2013 and G acknowledged service within 14 days confirming its intention to defend the entire claim. This meant that, as per CPR 58.5 (these were considered commercial proceedings, so the usual 14-day period for service did not apply), A was required
to serve its particulars within 20 days (before
29 October 2013).

However, A failed to serve in time despite
being chased by G’s solicitors on two occasions.
It was only on 29 October 2013 that A’s solicitors made contact asking for a 14 day extension.

G did not agree the extension and on
13 November 2013, applied to strike out A’s
claim under CPR 3.4 (2). A few days after, A
served its particulars and applied for a retrospective extension.

G did not agree the extension and on
13 November 2013, applied to strike out
A’s claim under CPR 3.4 (2). A few days after,
C served its particulars and applied for a retrospective extension.

G relied on Mitchell where the court confirmed it would only grant relief from sanction where the breach was ‘trivial’. A tried to contend its breach was ‘trivial’. Among others, it claimed the non-compliance was unintentional.

However, the court could see no reason why it had submitted a request for an extension so late, concluding this displayed indifference to compliance with the CPR.

A also alleged the delay was ‘only’ 20 days, but the court disagreed this constituted a trivial breach and referred to other cases such as Mitchell itself where the claimant was just five days late in submitting its costs budget.

The court addressed one of A’s other arguments about needing further time to undertake investigations and while accepting these matters were complex and time-consuming, it could still see no reason why the extension was not sought before the deadline.

When looking at all the factors together, however, the court still considered that a striking out order would be a disproportionate response as A’s breach was later remedied without prejudice to G.

However, it was noted from Mitchell that more emphasis should be given to enforcing the CPR to encourage compliance with the rules. As such, A’s claim was struck out.

This case is a further warning to both defendant and claimant solicitors of the risks associated with missing deadlines. Any reasons given for such delays will be subject to much more scrutiny. On the other hand, many lawyers may view the new regime as beneficial having had to frequently deal with
parties who delay in complying with deadlines.

It has always been difficult to explain such
delays to clients especially as these breaches
relate to deadlines set by court or statute. >>
>> Therefore, not only will it be interesting to see how the courts deal with future breaches but also the change in behaviour of parties who previously adopted a relaxed approach.

Police duty

Moving away from procedure to law, the Court of Appeal had to consider whether the police owed a duty of care to the claimant in Robinson v Chief Constable of West Yorkshire [2014] EWCA Civ 15.

To establish a duty, a claimant is normally required to satisfy the three-stage test of Caparo Industries Plc v Dickman [1990] 2 AC 605 which requires, (a) the damage was foreseeable; (b) there was sufficient proximity between defendant and claimant; and (c) that it was fair, just and reasonable to find the defendant liable.

The police are normally able to seek immunity
in respect of the third limb of this test and in Hill v Chief Constable of West Yorkshire [1989] AC 53, it was considered the police should be afforded some latitude to focus on their primary role of investigation and crime prevention without fear of being sued meaning it would not normally be fair, just and reasonable to hold police officers liable.

In Robinson, the police attempted to arrest an offender on the street who had resisted. The claimant, R, who was a passer-by, became caught up in the ensuing struggle and was knocked to the ground. R was injured and so commenced civil proceedings for damages.

The recorder at first instance concluded the police were negligent in the way they planned
and handled the arrest, but this was not sufficient to constitute the ‘outrageous negligence’ required to defeat the Hill principle. As such, she lost and
so appealed.

R argued that Caparo was not the appropriate test for negligence in her case. She put forward an interesting argument seeking to distinguish cases involving ‘direct’ and ‘indirect’ harm alleging her accident was an example of the former.

Therefore, as Caparo was a case involving pure economic loss, she contended claims of direct harm were excluded. Instead, Donoghue v Stevenson [1932] AC 562 was the correct test,
which she contended did not require the court to consider whether it was fair, just and reasonable to establish a duty.

The Court of Appeal disagreed that Caparo only applied to cases of indirect harm. It may initially have been triggered by claims not involving physical damage, but this has changed since,
as was evident in numerous recent decisions.

Caparo applies to all claims involving negligence. In any case, the question of what
is fair, just and reasonable was an inherent component of the test in Donoghue.

Therefore, when applying the Caparo test and in light of the Hill principle, it was held the police owed no duty to R meaning her appeal was dismissed.

Outrageous negligence

The court also considered the concept of outrageous negligence, but thankfully confirmed this is not the only means of defeating the Hill principle. However, cases where Hill did not apply would be exceptional depending on the individual circumstances of the case.

Hill would potentially only apply to cases arising from the police’s core functions. So claims relating to negligent traffic management decisions or those arising from where the police have assumed responsibility (say, for an informer) may give rise
to a duty of care.

It is clear from this and numerous other cases that Caparo is the main test for duty of care. It is the most recent case in a line of authorities that have developed the law of negligence. Some cases that pre-date Caparo sought to cater for individual circumstances or particular scenarios (an example is where a defendant fails to prevent harm by a third party), but now the courts very much regard Caparo as the main test for negligence.

As for the third limb of the test, there has recently been some reluctance by courts to afford bodies such immunity and, while this case was decided against the claimant, you do get a sense that the tide is shifting against blanket immunity in claims. SJ

Vijay Ganapathy is a solicitor at Leigh Day