Legal Watch:Personal InjuryApril 2014Issue: 014

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

Personal Data Training | 12.05.14 | Location TBC

Credit Hire Training | 12.06.14 | Location TBC

In This Issue:

• Damages/Fatal Accident

• Expert Evidence

• Post Jackson/Mitchell Cases

Damages/Fatal AccidentIn Greenwoods’ Alert 316 we reported the decision of the

Court of Appeal in Cox v Ergo Verisherung AG. The case has

now been to the Supreme Court on appeal and is reported at

(2014) UKSC 22.

The claimant/appellant’s deceased husband had been an

officer serving in the British army in Germany. He was killed

when he was hit by a car driven by a German national. The

driver accepted liability. He was insured by the defendant/

respondent, a German insurance company. The claimant

brought proceedings against the defendant in England, by

virtue of Regulation 44/2001. She later had two children with

a new partner. The court was required to determine whether

the Fatal Accidents Act 1976 or the German Burgerliches

Gezetzbuch (BGB) governed the damages that could be

recovered.

The Supreme Court held that the 1976 Act provided for a

measure of damages substantially more favourable to the

claimant than the corresponding provisions of the BGB. In

particular, damages under the BGB took account of rights to

maintenance from subsequent relationships, whereas S3(3) of

the 1976 Act excluded remarriage as a relevant consideration.

In addition, the 1976 Act awarded a solatium for bereavement

but the BGB did not, although a widow might be entitled to

compensation for her own pain and suffering if it went beyond

normal grief and amounted to a psychological disturbance

comparable to physical injury.

The deceased’s death occurred before Regulation 864/2007

(Rome II) came into force and any cause of action arising

out of it was governed by the Ss 9 – 15 Private International

Law (Miscellaneous Provisions) Act 1995 which partially

codified the choice of law in tort. The combined effect of those

sections was that issues in respect of personal injury were to

be determined according to the law of the place where the

victim suffered the injury, unless that law was displaced on

the ground that the tort had substantially more significant

connection with England. Those rules were subject to

the proviso in S14(3)(b) which preserved the distinction

between substance and procedure. Questions of procedure

were governed by the law of the forum and questions of

substance were governed by the lex causae.

The relevant German damages rules were substantive

because they determined the scope of the liability. English

law would regard it in the same light; questions of causation

were substantive. Such questions included questions of

mitigation because they determined the extent of the loss

for which the defendant ought to be held liable. It was not

necessary to decide whether the rules under 1976 Act

were procedural or substantive as they did not apply under

their own terms. They did not lay down general rules of

English law on the assessment of damages, but only rules

applicable to actions under the Act itself. Therefore, an

action to enforce a liability whose applicable substantive

law was German, was not an action under the Act to which

the Act could apply. The German rules on damages applied.

The claimant was entitled to damages for the loss of her

legal right of maintenance from the deceased. Credit had to

be given for maintenance from her subsequent partner since

the birth of their child, but credit did not have to be given for

maintenance received from her partner before they had a

child, when he was under no legal obligation to maintain her.

It was also necessary to determine whether the choice of

law arrived at, in accordance with S11 of the 1995 Act, was

displaced by some mandatory rule of the forum. There was

nothing in the language of the 1976 Act to suggest that its

provisions were intended to apply irrespective of the choice

of law derived from ordinary principles of private international

law. It was possible for such an intention to be implied if the

purpose of the legislation could not be achieved unless it

had extra-territorial effect, or if the legislation gave effect to

a policy so significant that parliament had to be assumed to

have intended it to apply to anyone resorting to an English

court. However, the question of extra-territorial application

could not have been an issue at the time the 1976 Act was

passed. Further, the whole purpose of S1 of the 1976 Act

was to correct an anomaly in the English law of tort. Foreign

laws were unlikely to exhibit the same anomaly. There was

no reason why parliament should have intended the 1976

Act to apply to foreign fatal accidents with no connection to

England or English law. It did not have extra-territorial effect.

(Per Lord Mance) It made no difference to the outcome of

the appeal whether the provisions of Ss 3 and 4 of the 1976

Act were substantive or procedural. If substantive, they

were irrelevant to a tort subject to German substantive law.

If procedural, they could not expand a defendant’s liability

under the substantive principles of the relevant governing

law.

‘...issues in respect of personal injury were to be determined according to the law of the place where the victim suffered the injury…’

Expert Evidence

‘It was factual evidence, but even if the court was wrong about that, justice required the evidence to be admitted...’

The clinical negligence case of Rich (Protected Party) v Hull

and East Yorkshire Hospital Trust [Lawtel 8/04/2014) looks

at the fine line that sometimes exists between expert and

factual witness evidence.

The appellant/claimant had brought a claim against

the respondent/defendant trust alleging that a failure

to administer antenatal steroids prior to her delivery in

1993 had caused her to suffer cerebral hypoxia-ischemia

leading to cerebral palsy. The issue revolved around the

word “likely” in the relevant guidelines at the time, which

said that the college would encourage all obstetric units

to consider the use of steroids when delivery was likely

before 34 weeks. That had been interpreted by the treating

doctor as meaning more likely than not, that was, more than

50%. The claimant’s proposed witness had been on the

committee that issued the guidelines, and said that “likely”

in the context meant a material possibility, namely between

5% and 20%, and it did not have such a high threshold as

to mean more than 50%. The Master held that the witness’

evidence was expert evidence regarding which there had

been no application to admit, as he was not a treating

doctor. The issue on the claimant’s appeal was whether it

was appropriate to allow the claimant to admit the witness’s

evidence on the meaning of the word “likely”.

The claimant submitted that it was not expert evidence but

a question of fact for the trial judge as to what the treating

doctor thought, and whether that was reasonable.

Allowing the appeal, the deputy High Court judge held

that when a case management decision could potentially

tie the hands of a trial judge, such a decision had to be

treated cautiously. The Master’s decision appeared to have

been based on arguments that had not been advanced

before him and if there had been an application to admit

the expert evidence, he might have decided differently. It

was factual evidence, but even if the court was wrong about

that, justice required the evidence to be admitted. The court

was reluctant to tie the trial judge’s hands in a pre-trial

decision when it was not aware of all the facts. It was not

a case where the trust would be taken by surprise. Once

exploration of the evidence had taken place, the trial judge

would be in a much better position to decide how much

weight to put on the evidence.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

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E: gro@greenwoods-solicitors.com

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Post Jackson/Mitchell CasesThe one substantive case to be reported this week brings

both hope and confusion to beleaguered litigators. In

Legal Watch: Personal Injury 008 we featured the first

instance decision in Chartwell Estate Agents Ltd v Fergies

Properties SA and another. Bucking the trend, relief was

granted from the sanction in CPR 32.10 arising from failing

to serve witness statements within the time specified. The

judge had held that the application for relief was not made

promptly and the default was not trivial, those being the

key requirements stipulated in Mitchell. The reasoning for

allowing the application was that both parties had been in

default, the trial date could be maintained and a refusal of

relief would effectively end the substantive claim.

The case has been to the Court of Appeal and having regard

to the proximity of the trial a judgment has been handed

down with the reasons to follow. The appellate court has

upheld the earlier decision.