1. law, govt and politics

Injury Times
A Newsletter of the Personal Injury Group at 2 Temple Gardens
In this edition…
Christopher Russell suggests lower living expenses for claimants should mitigate
earnings claims in MEASURING THE REAL LOSS. He asks whether defendants,
faced with high earnings shortfall, can take credit for a lower cost of living postaccident.
“To recover the full UK salary shortfall while ignoring the reduced level of living
expenses which a resident of Lithuania now has, would be a windfall to the Claimant
and offend the compensatory principle.”
John McDonald considers the vexed issue of whether one insurer can challenge
another insurer’s avoidance of a motor policy in an article asking the question:
PLEASE CAN I JOIN THE PARTY?
[email protected]
“The number of insurers seeking to avoid motor policies for non-disclosure or
misrepresentation has increased, as has the number of other insurers wishing to
challenge such avoidance... It is high time that the Court of Appeal ... gave clear
and authoritative guidance on this issue.”
Nina Goolamali provides a summary guide to MANAGING CHRONIC PAIN
CLAIMS and outlines the armoury available to penalise dishonest claimants.
“Chronic pain claims are invariably very high value and are complex in their
presentation. In order to litigate them effectively, advisors should obtain early and
extensive disclosure, commit to front loading costs and select the expert team
carefully in order to assess the evidential strengths and weaknesses at the first
available opportunity.”
[email protected]
(0)20 7822 1246
Helen Wolstenholme outlines problems for claimants in claims for stress illness in
YAPP: COMFORT FOR EMPLOYERS IN TIMES OF STRESS.
“Yapp is likely to make those representing claimants very cautious to proceed in
claims of this type in the absence of any evidence of vulnerability on the part of the
Claimant, even where an employer has obviously acted unfairly and in breach of the
implied term of mutual trust and confidence”.
Andrew Bershadski reviews recent cases limiting the scope for claims for “Nervous
Shock” in SECONDARY PSYCHIATRIC VICTIM CLAIMS: DEFINING THE
SHOCKING EVENT.
“It may be significantly more difficult to win clinical negligence and disease
‘deterioration’ cases but they will continue to come before the courts because
Walters sits uncomfortably with the later authorities.”
Lucy Wyles explains how one-way costs shifting rules affect claims against third
parties in QOCS AWAY!
“The impact of the QOCS provisions plainly requires careful economic consideration
where indemnity or contribution claims are contemplated by defendants to personal
injury claims, whether arising from accidents abroad or otherwise.”
www.2tg.co.uk
INTRODUCTION
RSA to bring committal proceedings against the
Claimant for making false statements.
Welcome to the 2015 edition of Injury Times. You will
find a series of articles relating to recent important
decisions or topics which we believe to be of particular
importance at the moment. I trust you will find it both
informative and useful. The contributors look not only at
the present state of the law in evolving areas but also at
how the law might (or should!) develop further.
Martin Porter QC was instructed in Chief Constable of
Hampshire Constabulary v Southampton CC in which
the point at which time starts to run for a contribution
claim was considered.
You will know that members of 2TG Personal Injury
Practice Group continue to be busily engaged in all
areas of personal injury and clinical negligence. The
following are but a few examples.
Howard Palmer QC and Lucy Wyles were instructed in
Wagenaar v Weekend Travel Ltd, the first case in which
QOCS was considered by the Court of Appeal (see
Lucy’s article). Howard is also leading William Wraight
on behalf of the Insured in the PIP Breast Group
Litigation.
Marie Louise Kinsler and I appeared in Wall v Mutuelle
de Poitiers, the first Appellate decision anywhere in
Europe on the ambit of the law of the tort under Rome II.
Helen Wolstenholme is now working with us on the
quantum issues in the case.
Jacqueline Perry QC and Niazi Fetto are instructed in
the group action of Martin v Frimley Park Foundation
which relates to the manufacture of vaginal mesh. Niazi
also continues to be heavily involved in the Mau Mau
litigation.
I am leading Roger Harris in the case of Mohamud v WM
Morrison Supermarkets in which the Supreme Court is
due to consider the question of vicarious liability for
intentional torts committed by employees in very
different circumstances from those considered in Mattis
v Pollock.
Christopher Russell has received a number of
instructions in abuse cases including a claim against a
local authority for alleged heavy handed investigations
into abuse of young children in a nursery.
John McDonald continues to demonstrate his preeminence in occupational disease claims and disputes
over the Road Traffic Act and the construction of motor
insurance policies.
Over the last 12 months, Nina Goolamali has continued
to defend in a wide range of sensitive high value cases,
most recently being instructed in the civil litigation arising
out of three fatalities following the well-publicised
Birmingham Riots in August 2011
Helen Wolstenholme has developed expertise in claims
for chronic pain and psychiatric injury, and is especially
sought after when causation is complex; she was
recently part of a team led by Caroline Harrison QC in a
very substantial brain injury case.
Following victory for Henry Morton-Jack for the
Defendant in Fahad v Royal & Sun Alliance Insurance
Plc, Anna Hughes successfully obtained permission for
Jack Harris and Anastasia Karseras are representing the
Claimant and Defendant respectively in Aleman v
Metroline, a case examining the common law duty of bus
drivers to passengers in wheelchairs.
Hayley McLorinan's recent personal injury work has
spanned a wide variety of areas, including employer's
liability, road traffic, occupiers and defective product
claims.
In Nadeem v Shell [2014] UKHC 4664, Bruce Gardiner
successfully resisted an attempt to expand the scope of
the tortious duty in stress cases to relationships other
than employment. The unsuccessful claimant was a
franchisee for Shell who claimed he had been
overworked and bullied by his manager.
Rehana Azib has had serial instructions in interesting
occupational stress cases breaking new ground
including Laura Warwick v Euro Car Parts Limited, a
claim with complex arguments on vicarious liability,
sexual harassment and estoppel.
Meghann McTague has received a number of
instructions involving accidents abroad including acting
for the Claimant who sustained serious injuries on a
yacht in foreign waters. The case concerned complex
jurisdictional issues.
Nina Unthank has had a number of claims arising out of
accidents on indoor ski slopes and ice skating rinks. She
also successfully defended a well-known bread producer
in multiple claims for repetitive strain injuries and
continues to specialise in fraudulent road traffic
accidents
Caroline Harrison QC and I, leading Andrew Bershadski
and Luka Krsljanin respectively, are appearing on
opposite sides in the Privy Council in an appeal from the
Court of Appeal in Bermuda on an important causation
issue in a clinical negligence case.
Members of Chambers continue to be instructed in
cases from the Channel Islands in which the discount
rate debate continues to rage following Helmot v Simon.
We all await the Lord Chancellor’s decision following
consultation on the Damages Act. It hardly needs to be
stated that this has the potential to have a very large
effect on future awards.
It remains only for me to thank the contributors to this
issue and the editorial team which has done tireless
midwifery work to bring it into being.
Ben Browne QC
www.2tg.co.uk/expertise/personal_injury
MEASURING THE REAL LOSS
In what circumstances can defendants, faced
with high loss of earnings claims, take credit
when living costs less?
Gabriele is a stereotypical European economic migrant.
Born and educated in Lithuania to university level, she
was attracted by the higher pay that the British labour
force earns compared to that in her own country. Taking
advantage of the sort of laws that might have Nigel
Farage spluttering into his pint, she arrived like many
young people prepared to work and to work hard. That
was in 2005 and she was 25. Within 5 years she was
established in Canterbury, working in food retail. She
was on the managerial rungs of a national chain of
outlets. Highly thought of by her employers, she had
been promoted quickly and was earning £30,000 pa,
including bonus, which was about 6 times what she
would have earned as a manager in a similar position in
her home, the cathedral city of Siauliai. She had fitted
into a young professional lifestyle of Canterbury well:
flatshare, gym membership, cultural interests in theatre
etc. She had a steady boyfriend with whom she was
planning to move in. Life was good and the prospect of
her life in the UK stretched away with no finite end. She
was not one of those scrimping to get by to send large
chunks of her salary home. If asked, “Are you going to
stay here permanently?” she would have replied, “I have
no idea.”
Gabriele returned to Lithuania at the end of 2010. She
quickly found a job in a managerial position in Siauliai
with equivalent responsibility and prospects but for a
salary of about 25,000 litas, equivalent to £6,000. She
has married a Lithuanian and has a young child they are
bringing up in Siauliai. Unsurprisingly, her claim for loss
of earnings is based upon the shortfall of £24,000 per
annum. There are inevitably, arguments available that
she would have returned to Lithuania to, for example,
raise her family or care for elderly parents which, at least
offer the prospect of a discount but a full earnings
multiplier for a woman of 34 at £24,000 gives rise to a
tidy sum for future loss of earnings.
... to Siauliai
For Gabriele, her salary in litas goes about as far in
Siaulai as her salary in sterling did in Canterbury. A little
internet research shows that the cost of living in
Lithuania and Siaulai in particular, is far less than in the
UK and Canterbury. Numbeo.com illustrates rents are
almost 80% lower in Siauliai, average net salary about
70% less. A basket of individual items show a broad
pattern with variations, with only a luxury imported item
(Nike trainers) being more expensive there.
In the respective capitals, for which there is more data,
rents are 82% lower in Vilnius and average net salary
about 78% less than in London. Consumer prices
(without rent) are said to be 49% lower in Vilnius than
London; such prices (including rent) are 63% lower.
From Canterbury...
st
Everything changed on 1 October 2010. Gabriele was
in a beautician’s salon in Ramsgate waiting for her friend
to finish her shift. She saw the car coming before it
smashed through the plate glass window of the salon. It
ploughed into the reception desk, pushing a table at
Gabriele who was unable to move fast enough to avoid
minor cuts to her legs. Although only superficially injured
physically, the experience caused Gabriele to develop
moderate PTSD. Typical of Gabriele and her work ethic,
she took just half a day off work but a consequence and
symptom of her psychiatric injury was a wish to live in
Siauliai again and close to her mother which was readily
credited by the experts.
Nationally, rents in Lithuania are 33% of those in UK and
average net salary about 24% of UK net salaries.
Consumer prices (without rent) in Lithuania are said to
be 57% of those in UK; such prices (including rent) are
essentially half those in UK. It is difficult to take one
percentage to fit all but the pattern is clear.
www.2tg.co.uk/expertise/personal_injury
often deprecated for the reasons expressed by Lord
Griffiths in Dews v NCB [1988] AC 1 @ 13:
“in the field of damages for personal injury,
principles must sometimes yield to common
sense.. the calculation of loss in personal injury
cases should be kept simple as a matter of policy,
particularly where the sums involved do not justify
the costs likely to be incurred by elaborate
investigation.”
Same sort of shops; different sort of prices
The relevance of disparity ought to be uncontroversial
upon first principles underlying the compensatory
principle. The measure of damages for pecuniary loss is
the exact amount of money which has been lost, or has
to be spent, in consequence of the injury. Of many
judicial observations, that of Lord Goddard in BTC v
Gourley suffices:
“The basic principle so far as loss of earnings... are
concerned is that the injured person should be
placed in the same financial position, so far as can
be done by an award of money, as he would had the
accident not happened.” [1956] AC 185 at 206.
For that reason, damages for loss of earnings are paid
net of tax. For that reason, a deduction for living
expenses is made in claims for Lost Years and in Fatal
Accident Acts Dependency claims. For the same reason
a claim for lost earnings in the event of wrongful
conviction will be discounted to reflect the saving of
living expenses which have not been incurred [O'Brien &
Ors v Independent Assessor [2007] UKHL 10].
Where there has been a material change in living
expenses following, and as a result of, injury, that should
not be ignored, whether it be increased costs or reduced
costs. Housecroft v Burnett [1986] 1AER 332 and Cassel
v Riverside HA [1992] PIQR Q168 are familiar examples
of the former while cases such as Shearman v Folland
[1950] 2KB 43 and Lim Poh Choo V Camden and
Islington AHA [1980] AC 174 establish that ordinary
living expenses not incurred as a result of an injury may
be set off. To allow Gabriele to recover the full UK
salary/Lithuania salary shortfall while ignoring the
reduced level of living expenses which she, as a resident
of Siauliai, now has (compared to residing in Canterbury)
would be a windfall to her and offend the compensatory
principle.
It may be possible to characterise the higher living costs
of living in Canterbury as a necessary means and
expense to enable Gabriele to earn the higher
Canterbury pay rates (compared to Lithuania). Expenses
necessarily incurred for the purpose of earning a living
are deductible (eg Lord Scarman’s observation in Lim
Poh Choo at p191) but investigation of such expenses is
Lord Griffiths accepted that there may be some
circumstances where it is justified – as in the example of
the business man who commutes by helicopter from the
Channel Islands. The trial judge in Eagle v Chambers
[2004] 1 WLR 3081 reduced past loss of earnings by
15% for travel expenses. Kemp suggests that credit
should be given where there is clear evidence of regular
expenditure such as a railway season ticket.
The issue is not free from difficulty. Gabriele may portray
the lower living expenses consequent upon her removal
home to Lithuania as a benefit resulting from the injury
for which she does not have to give credit. The general
rule, stated in cases such as Hussain v New Taplow
Paper Mills [1988] AC 514 by Lord Bridge at 527 is that:
“prima facie, the only recoverable loss is the net
loss. Financial gains accruing to the plaintiff which
he would not have received but for the event which
constitutes the plaintiff’s cause of action are prima
facie to be taken into account in mitigation of the
losses which that event occasions to him. In many,
perhaps most cases, both losses and gains will
come into the calculation.”
However, exceptions to the rule are extensive. While an
exception on which a Gabriele might rely has yet, to the
best of my researches, to be articulated, I have been
unable to find an authority exemplifying such a credit or
even including the argument for one. In Amakye v
Aramark PLC (1998) which is inadequately reported, the
disparity of living expenses in the UK and Ghana
featured in argument but did not appear to generate any
judicial conclusion. A judge may be reluctant, even
assuming hard and admissible evidence, to follow such
a course. Why, it may be contended on behalf of
Gabriele, and other Gabrieles, does it not happen within
our national borders? A person working in London,
receiving a City salary and paying London housing and
other costs, when injured and unemployable, may
choose to live in a part of the country where
accommodation and other living expenses are very
significantly less; however the loss of earnings would be
expected to reflect the loss of job and not, probably, the
reduced domestic costs. But should it?
A potential problem with some Gabrieles who are
workers from parts of Europe where there is a cost of
living and salary disparity compared to the UK is that
they often take advantage of the higher salaries to send
money home, scrimping to get by notwithstanding higher
living expenses. That is a lifestyle choice of which the
tortfeasor, who takes its victim as found, has deprived
them. That will serve to complicate the computation of
www.2tg.co.uk/expertise/personal_injury
“Haste still pays haste, and leisure answers leisure;
Like doth quit like, and Measure still for Measure.”
loss of earnings if comparison of living costs is to be
entertained.
This will be an interesting issue relevant, I expect, to an
increasing number of personal injury claims in a world
with greater international migration of workers and it may
require appellate authority to establish a principle
specific to migrant workers. One factor which may
frustrate this development of the law is the thin end of
the wedge fear. If lower costs of living are brought into
account with global economic migration, or within the
EU, why not within the UK adopting the argument
above? Admission of such a principle will serve to
complicate injury claims, where the legislative and
judicial zeitgeist is to simplify them.
If the principle can be established, the further issue is
that of proof in an admissible and proportionate form. As
we have seen, from Lord Griffiths’ words in Dews, the
Court deprecates detailed investigations into the cost of
earning an income.
His words anticipate the new world of restrictive costs
budgeting presciently. I expect that the Court would be
reluctant to entertain an application for expert evidence
to establish what pages of data indicate, even if the
relevant discipline of expert evidence could be identified.
It is not a question of evidence of foreign law so much as
foreign domestic economics.
Is the Judge likely to pay attention to data assembled by
the likes of numbeo.com? Probably not, but it depends
upon the judge. He or she may take judicial notice of the
fact that there are materially different costs of living
depending on which part of the EU, or the world, in
which you live, but the quantifiable difference between
the UK and any given country requires respectable
evidence.
Since Lithuania is a fellow member of the EU, more
authoritative statistics are available from the European
Commission: epp.eurostat.ec.europa.eu/ under the
section “Comparative price levels of consumer goods
and services”. If formal rules of admissibility are to be
followed, an expert in statistics would be required to
interpret them, much as a meteorological expert
interprets and presents to the Court weather data. In
practical terms, if this issue arises in a case where
sufficient is at stake, insurers should seek permission for
a statistician to interpret such data as the EU hoards.
Many a case managing district judge would retort that
the trial judge could readily unravel the relevant parts of
the detailed tables the above guide contains. Since there
are said to be 3 kinds of lies: lies, damned lies and
statistics, allowing a judge to cherry pick comparisons
may be a recipe for confusion. At least a single joint
expert might be warranted. If not allowed, an advocate
might be heard to mutter when confusion has made his
masterpiece, “I told you so.”
Justice, however, requires the Courts to determine the
loss in real terms; like, so far as they can, for like. Or as
it was put in the mouth of the Duke by Shakespeare:
Measure for Measure Act 5 Scene 1
Christopher Russell
[email protected]
PLEASE CAN I JOIN THE PARTY?
When and how can one insurer challenge
another insurer’s avoidance of a motor policy?
Introduction
The number of uninsured motorists on our roads used
until recently to be a scandal. Now, however, factors
such as improved accessibility of the Motor Insurance
Database, the need to have insurance to obtain a car
licence, and automatic number plate recognition have
led to there being fewer uninsured drivers. But while
more motorists now take out insurance, most people
now take out motor policies on the internet or through
call centres, and a significant proportion of applicants
have scant regard to the truthfulness of their answers to
the questions they are asked online or by the operator.
This has resulted in more insurers seeking to avoid
motor policies for non-disclosure or misrepresentation,
particularly after an accident has occurred.
At common law, if an insurer is able to avoid a policy ab
initio for non-disclosure or misrepresentation, it will have
no obligation to meet a personal injury or other claim
against its insured. While that position has been
significantly altered by statute and otherwise (as
summarised below), it is often still worthwhile for an
insurer to avoid a policy, particularly if there is another
insurer who will have to meet the claim instead.
There are many cases where the contractual or other
status of the insurer may need to be considered in order
to determine which one has to pay. Examples include
the following:
-
Where the claim is by a passenger in one of
two cars which collide and the drivers are each
to blame for the accident.
-
Where a driver of a hire car causes an
accident, if that car is insured both on his own
policy and it is also one of the vehicles named
on a fleet policy taken out by the hirer.
In such cases, if insurer A is able to avoid the policy on
the grounds that it was obtained by misrepresentation or
non-disclosure, then its status may in principle be
reduced to that of Article 75 insurer. In that situation,
since an Article 75 insurer only has to meet an
www.2tg.co.uk/expertise/personal_injury
unsatisfied judgment, and since insurer B will have to
satisfy the judgment in full, insurer A will not have to pay
anything. Insurer B therefore has a keen interest in the
issue of whether insurer A can reduce its status to Article
75 insurer. But is it entitled to a say in the matter?
The status of motor insurers
A motor insurer may be required to meet a claim in one
of three different ways:
(1)
As contractual insurer. In such a case, it
provides an indemnity to the insured, although
it may (under the European Communities
(Rights against Insurers) Regulations 2002 or
otherwise) be sued directly by the Claimant. If
an insurer is contractual insurer, it cannot
usually recover its outlay from the insured.
(2)
As RTA insurer under section 151 of the Road
Traffic Act 1988. In such a case, it has no
contractual obligation to the person to whom it
has issued a policy, but has a statutory
obligation (subject to the terms of the 1988 Act)
to satisfy a judgment which has been obtained
by the Claimant against the insured. If an
insurer is RTA insurer, it may be able to recover
its outlay from the insured, under section 151(7)
or (8).
(3)
As Article 75 insurer. In such a case, it has no
contractual or statutory obligation to meet the
claim, but may have to satisfy an unsatisfied
judgment under the internal arrangements of
the MIB as set out in its Articles of Association.
Its obligation may, however, be curtailed by the
provisions of the MIB Uninsured Drivers
Agreement 1999, which provides for exclusions
in respect of (eg) subrogated claims. If an
insurer is Article 75 insurer, it will in principle be
able to recover its outlay from the insured.
Section 151
By section 151(2)(a) and (5) of the RTA, where a victim
has obtained a judgment relating to a compulsorily
insurable liability which is covered by the terms of a
motor policy, then even if that the insurer may be entitled
to avoid or cancel, or may have avoided or cancelled,
the policy, it still must meet the claim, unless one of the
exceptions under the Act applies. Section 152(2) is one
of those exceptions, and provides that no sum is payable
by an insurer under section 151 of this Act if, in an action
commenced before, or within three months after, the
commencement of the proceedings in which the
judgment was given, it has obtained a declaration (a)
that, apart from any provision contained in the policy or
security, it is entitled to avoid it on the ground that it was
obtained (i) by the non-disclosure of a material fact, or
(ii) by a representation of fact which was false in some
material particular, or (b) if it has avoided the policy or
security on that ground, that it was entitled so to do apart
from any provision contained in it.
This provision was originally enacted in section 10 of the
Road Traffic Act 1934, at a time when the MIB did not
exist and so, if an insurer succeeded in avoiding a
policy, the victim of an accident might well have been left
without a remedy. A mechanism was therefore provided
in that Act enabling a victim to contest the insurer’s
entitlement to a section 152 Declaration, and - even
though a victim will now usually be able to recover
compensation under the MIB Uninsured Drivers
Agreement – that mechanism still exists today. Under
section 152(3) of the 1988 Act, a Declaration is only
effective in relation to any third party claim against the
driver if the insurer has given notice before or within 7
days after the commencement of the Declaration
proceedings to the victim, specifying the non-disclosure
or misrepresentation on which it proposes to rely. And by
section 152(4), a person to whom notice of such an
action is so given is entitled, if he thinks fit, to be made a
party to it.
Is another insurer entitled to be joined to the
Declaration proceedings?
On its strict terms, section 152(4) only entitles a victim
who has actually issued a Claim Form to be made a
party to the Declaration proceedings, but in Zurich v
Livingston 1938 SC 582 it was held that a victim of a
road traffic accident who had not yet commenced
proceedings was entitled to be joined to the Declaration
action. This clearly makes sense, since Declaration
proceedings are very often commenced before any
personal injury or property damage claim has been
issued, and it could lead to injustice if a victim were not
able to challenge an insurer’s entitlement to a
Declaration in those circumstances.
But are others, such as another insurer which would
have to meet the claim in full if the insurer seeking the
Declaration was successful, entitled to be joined and
challenge the Declaration proceedings? This issue
frequently arises nowadays, but surprisingly there are no
authoritative decisions on the matter. There are,
however, a number of unreported decisions of District
Judges, in several of which the writer has appeared
either for the insurer seeking to intervene or to resist
such intervention.
The starting point is CPR 19.2(2), which provides that
the Court may add a person as a new party to an action
if (a) it is desirable to add the new party so that the court
can resolve all the matters in dispute in the proceedings;
or (b) there is an issue involving the new party and an
existing party which is connected to the matters in
dispute in the proceedings and it is desirable to add the
new party so that the court can resolve that issue. CPR
19.2(2)(a) probably does not apply, because it is not
necessary for insurer B to be joined so that the issue
between insurer A and the insured can be resolved. So
two matters arise under CPR 19.2(2)(b): (i) is there an
“issue” between the two insurers; and (ii) even if there is
such an issue, is it “desirable” to add the new party?
In favour of joinder, the following arguments have been
deployed:
www.2tg.co.uk/expertise/personal_injury
(1)
(2)
(3)
Section 152(4) is not an exhaustive statement
of the right to intervene. Thus, in Zurich v
Livingston, the Lord President said “I think that
the proviso is not intended to deal exhaustively
with the third party’s right to be made a party to
the action of declaratory, but is only dealing
with the particular case where notice falls to be
given by the insurer when he raises such an
action.” Lord Moncrieff agreed, saying “I see no
reason to infer that, because the third party is
expressly granted such a title in other
circumstances, the statute must be read as
excluding a title in this case. The one case
invited regulation, while the other might
properly be left to the common law.”
If, as sometimes happens, the intervening
insurer has been given notice of the Declaration
proceedings, then it may be able to contend
that it falls within section 152(4) and so be
entitled to be joined: this was in effect the
decision in Sabre Insurance v Jones & EUI
(2013) Brighton County Court, in which the
writer appeared for the intervening insurer.
Even if the intervening insurer has not been
given notice of the Declaration proceedings, it
has been held in one case that it is entitled to
be joined under CPR 19.2(2): see NFU v
Pollard & Groupama (2010) Central London
County Court. In that case, it was held, applying
Gurtner v Circuit [1968] 2 QB 587, that just as
in there (where MIB was entitled to be joined to
an action because it could be meeting the
judgment) so also an insurer with a proper
interest could intervene in Declaration
proceedings, because they were “vitally” and
“directly” affected by the outcome, and they
were not required simply to stand by and watch.
But there are powerful legal and policy grounds against
joinder:
(1)
(2)
The entitlement to avoid an insurance policy on
the
grounds
of
non-disclosure
or
misrepresentation is purely a matter of contract
between the insurer and the insured motorist,
and so there is no “issue” involving the two
insurers and the Defendant to the Declaration
proceedings such that CPR 19.2(2)(b) could
apply.
The mere fact that the insurer seeking to
intervene may become liable if any claim by the
victim of the RTA were to succeed does not
mean that there is any issue between it and
parties to the Declaration proceedings. As was
stated the reserved judgment in Equity Red
Star v Meppen-Walter v Quinn (2013)
Manchester County Court, in which the writer
also appeared, “the mere fact that Quinn [the
insurer applying to be joined], by reason of the
provisions of the Act, may become liable... does
not mean that there is any issue between them
and the parties to this claim”.
(3)
In 1988, when section 152 was enacted, the
applicable procedural rules were contained in
the Rules of the Supreme Court. There is no
material difference between the provisions of
RSC Ord, 16.6(2), which then provided for
joinder, and CPR 19.2(2): see eg Fisher
Meredith v JH & PH [2012] EWHC 408, eg,
where it was held that the differences between
that provision and the present provision in the
CPR were “purely linguistic”. See also Humber
Work Boats v Selby Paradigm [2004] EWHC
1804. The fact that there is no material
difference between the provisions of the court
rules and that the draftsman of the Road Traffic
Act 1988 decided that it was necessary to
include the provision at section 152(4), is
therefore itself is a powerful argument that an
intervening insurer does not fall within CPR
19.2(2).
(4)
CPR 19.2(2)(b) only confers a discretion on the
court to allow joinder, and in the usual case,
there are good reasons why that discretion
should not be exercised in favour of the
intervener. In RSA v Yahiaoui & Provident
(2009) Manchester County Court, for example,
the application for joinder was refused on the
basis that it was in effect simply a “fishing
expedition” whereby the intervener sought to be
joined so as to entitle it to disclosure of the
Claimant insurer’s documents to see if it could
find grounds for objecting to the Declaration
being granted.
(5)
There are issues of commercial confidentiality
which are strongly against joinder in such a
case. The insurer seeking a section 152
Declaration must in principle prove (a) the nondisclosure or misrepresentation as a fact, (b)
that it was material, and (c) that it was induced
by it to issue the policy. Issue (c) may involve
consideration of the insurer’s underwriting
criteria, which are highly commercially sensitive
and not something that it would wish to have to
disclose to another insurer.
Proceedings for a section 152 Declaration are usually
brought under the accelerated CPR Part 8 procedure on
the basis that there is unlikely to be a substantial dispute
of fact as to non-disclosure or misrepresentation or as to
the other issues involved. Insureds in such cases are not
usually legally represented, and so it is relatively easy
for the Claimant insurer to obtain a default judgment in
section 152 Declaration proceedings. If it has obtained a
default judgment before the intervening insurer has
applied to be joined, in order to get that default judgment
set aside, the intervener will have to persuade the court
that it is directly affected by that judgment (CPR 40.9)
and that the Defendant insured has a “real prospect of
successfully defending the claim” (CPR 13.3). Whether it
can show that it is “directly” affected is debatable, and in
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order to fulfil the requirement under CPR 13.3, the
intervening insurer will need to be able to identify a
prospective defence (which may be uncovered if it is
joined, but which will usually be impossible to find
without first having disclosure of the Claimant insurer’s
documents). It was primarily for these reasons that the
application for joinder in Equity Red Star v MeppenWalter failed.
One possible solution is for the court to permit joinder of
the intervening insurer but to require it to serve a fullypleaded Defence (before disclosure of documents)
setting out its grounds for objecting to judgment being
granted in favour of the Claimant insurer. This was the
order made in Preserve Insurance v Chikuza & Allianz
(2014) Birmingham County Court, in which the writer
also appeared for the Claimant. In that case, the
intervener was unable to plead a substantive defence,
and so it had to withdraw from the Declaration
proceedings.
Summary
The number of insurers seeking to avoid motor policies
for non-disclosure or misrepresentation has increased,
as has the number of other insurers wishing to challenge
such avoidance. The Road Traffic Act 1988 makes no
provision for them to be able to do so, with the result that
the courts are thrown back on the CPR and common law
principles, leading to conflicting decisions. It is high time
that the Court of Appeal or at least the High Court gave
clear and authoritative guidance on this issue.
John McDonald
[email protected]
The first discipline to involve is usually Orthopaedics.
The orthopaedic report will give an assessment of
whether the Claimant has in fact suffered an organic
injury and if so of what severity and duration. If the injury
in question is soft tissue in nature, the parties' respective
experts are likely to be in agreement. A point of
contention may arise however if the Claimant has a
previous orthopaedic history, for example back problems
and there is a dispute as to whether the index accident
has given rise to an acceleration injury. The potential
importance of this dispute is that the Claimant has
grounds to assert that he/she has an organic injury
causing pain as opposed to there being no continuing
organic injury to explain the presence of pain.
Involvement of a Consultant Rheumatologist or a Pain
Management expert is inevitable in chronic pain cases.
The decision as to which expert to involve is not always
straightforward given that many of the chronic pain
conditions eg Chronic Regional Pain Syndrome are dealt
with by both disciplines. A careful assessment of the
expert's clinical and research expertise in the particular
pain condition complained of and their ease with both
diagnostic and treatment issues needs to be made.
A Consultant Psychiatrist or Consultant Psychologist will
be needed to comment on the presence of any stand
alone psychiatric disorders and the diagnosis and
treatment of the pain complained of by the Claimant.
If the Claimant has not sustained any head injury, then
the role of a Consultant Neurologist is more limited and
this discipline of expertise may not be required.
However, if for example, there are complaints of memory
loss or nerve root irritation, then such an expert could
give useful input as to whether there is an organic
explanation for this.
Content of expert reports
MANAGING CHRONIC PAIN
CLAIMS
Introduction
th
The 12 edition of the Judicial College Guidelines has
an entire category 8 devoted to chronic pain claims
which are now a firm feature of the personal injury
litigation landscape. They frequently present as an
uncomplicated low value orthopaedic injury which fails to
resolve in accordance with the expected prognosis and
then develops into a complex constellation of complaints
of diffuse pain, psychological problems and a range of
functional impairments.
This article provides summary guidance as to how to
manage chronic pain claims from the pre litigation stage
to trial and explores post trial remedies.
Selection of experts
The first and most important consideration in chronic
pain cases is the early and correct selection of experts.
In common with other injuries, a detailed assessment of
the Claimant's previous medical history and the accident
description (as given to the examiner and as compared
to accounts given to others) together with a thorough
examination are essential.
In chronic pain claims, features such as a traumatic
childhood, exaggerated reaction to previous injuries or
difficult interaction with other professionals can give a
valuable insight into the Claimant's condition and likely
level of functioning irrespective of the index accident.
From the perspective of making the diagnosis, careful
comparison needs to be made between the objective
signs and subjective complaints of pain. It is essential
that other diagnoses are excluded and stated to have
been considered.
Testing the evidence
Surveillance evidence of the Claimant and their internet
activity will no doubt be considered in the course of
litigation as an aid to resolve the question of whether (a)
there is any functional impairment and if so the extent of
the same; and (b) whether any discrepancies between
presentation in a medico legal context and other
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situations is conscious or unconscious. Given that
claimants in chronic pain cases often have a complex
number of unrelated issues, a multi disciplinary
conference to review all of the available evidence
(especially that submitted to independent third parties) is
essential as early as possible in the litigation to enable a
firm steer on causation and diagnosis to be given.
Illustrative authorities
Bennett v Smith [2003] EWHC 1006 (QB)
The Claimant was involved in a road traffic accident on
th
29 April 1997. Liability was admitted. In relation to
medical causation there were essentially 2 issues: (1)
was the diagnosis of Fibromyalgia sound; and (2) was it
caused by the index accident. At trial, Mr Recorder
Prosser heard from a Consultant Rheumatologist from
each of the parties, plus a Consultant Physician on
behalf of the Claimant and a Consultant Neurologist on
behalf of the Defendant. Central to the question of
diagnosis was an assessment of the diagnostic criteria
for fibromyalgia (in this case it was the 1990 American
College of Rheumatology (ACR) guidelines which were
agreed to be of application).
At first instance, Mr Recorder Prosser found that the
index accident had caused the Claimant to suffer
fibromyalgia. He relied in particular on the evidence of
the Claimant's instructed Rheumatologist, Dr Bourne,
who of the 4 medico legal experts, was acknowledged
as having had the most experience of this condition. The
central pillar of the appeal by the Defendant was that not
all of the ACR criteria were fulfilled in this case and
accordingly Dr Bourne should not have diagnosed
fibromyalgia. The appeal was dismissed by Mr Justice
Smith on the basis that Dr Bourne was entitled to and
did apply the relevant criteria, that the criteria were
guidelines not absolute rules to which rigid adherence
was necessary and he had drawn on his extensive
clinical expertise when arriving at his opinion.
The clear lesson from this case is that selection of
experts is key: it was the Claimant who had furnished
the Court with the expert holding the most extensive
relevant expertise and unsurprisingly therefore the
Claimant was able to put forward the most persuasive
case.
Judge Seymour QC held that only where the Claimant's
evidence was corroborated by an independent source
was it accepted. The Claimant had deliberately misled
the Court and but for his deception it was highly likely
that the claim would have settled at an early stage
without trial. The Claimant was therefore ordered to pay
the whole of the Defendant's costs on an indemnity
basis.
Connery v PHS [2011] EWHC 1685 (QB)
The Claimant, a Community Staff Nurse, was involved in
th
a road traffic accident on 11 May 2007 in respect of
which liability was admitted. She alleged that she had
suffered whiplash injuries to her neck and back which
had developed into chronic regional pain syndrome
(CRPS).
The two key issues before the Court were (1) did the
Claimant suffer from CRPS; and (2) was the Claimant
exaggerating her disability? The Claimant had instructed
a Pain Management expert and a Consultant
Rheumatologist and the Defendant had instructed a
Consultant Orthopaedic surgeon and a Consultant
Rheumatologist. His Honour Judge Platts found that the
Claimant did have CRPS and in so concluding took into
account the fact that 7 treating consultants accepted the
diagnosis, there were objective signs of CRPS and that
this was the diagnosis arrived at by the Claimant's Pain
Management expert who relied on considerable medical
literature in support of his view, none of which had been
considered by the Defendant's Orthopaedic expert.
However, he considered that further improvement in her
condition was likely and that it would be appropriate to
apply a mid point discount factor to the multiplier for
future loss of earnings.
The Authorities: Lessons arising
1.
It is essential to ensure the appropriate pairing of
experts. In chronic pain cases, pairing a
Consultant Orthopaedic surgeon with a
Consultant Rheumatologist/ Pain Management
expert on the other side will inevitably mean that
in relation to diagnosis and treatment, the
Orthopaedic Surgeon will outside his or her area
of expertise.
2.
It is important to agree on the relevant diagnostic
criteria and how they should be applied.
3.
Very detailed knowledge of the case is
impressive. A forensic analysis of all available
records by time tranche combined with clinical
detail and familiarity with up to date medical
research will maximise the chance of that
expert's evidence being preferred.
4.
Agreements on prognosis (even if there is
disagreement as to diagnosis) can lead to
considerable savings in damages.
5.
There is usually evidential scope for arguing for
different discount factors to take account of
higher functional levels than pleaded.
Bryant v Pritchard [2006] EWHC 3593 (QB)
The Claimant, aged 42 was involved in a road traffic
accident in 2001 in the course of which a lorry collapsed
on top of his vehicle trapping him inside. Liability was not
in issue. It was common ground that he had sustained
physical injuries expected to resolve in 12 months as
well as Post Traumatic Stress Disorder and depression.
However, the point in dispute was whether he suffered
from chronic myofascial pain syndrome. In reliance upon
extensive surveillance evidence, the Defendant asserted
that the Claimant was exaggerating his pain and
disability. All of the Claimant's factual and medical
explanations for the significant discrepancies between
what was shown on the surveillance and his complaints
of very poor function were rejected at trial. His Honour
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Post Judgment Options
Given the fine line between conscious and unconscious
exaggeration in chronic pain cases, the disputes as to
the interpretation of the evidence adduced at trial tend to
persist post resolution of the claim whether it is
concluded by way of discontinuance, settlement or
judgment.
CPR 44.16
In Gosling v Hailo & Screwfix Direct, 29.04.14, the
Second Defendant applied for an order under CPR
44.16 that the Claimant should not have the protection
of qualified one-way costs shifting (QOCS) following the
discontinuance of his personal injury claim against the
Second Defendant.
The Court held that in order to succeed under CPR
44.16, the Defendant had to demonstrate fundamental
dishonesty. "Fundamental dishonesty" had to be
interpreted purposively and contextually and it had to go
to the whole or a substantial part of the claim.
Considerations of proportionality would apply to the
question of whether the question of fundamental
dishonesty was capable of being determined by way of
summary assessment or whether oral evidence was
properly required.
Contempt of Court proceedings
The relevant rules are set out in CPR 81.17 & 81.18.
Permission is required and the burden of proof is to the
criminal standard. A three part test has to be satisfied:
(1)
was the statement false;
(2)
the statement has, or if persisted in would be
likely to have interfered with the course of justice
in some material respects: and
(3)
at the time it was made, the maker of the
statement had no honest belief in the truth of the
statement and knew of its likelihood to interfere
with the course of justice.
A chronic pain claim which well illustrates how the
contempt of court process operates is the case of Kirk v
Walton [2008] EWHC 1780 (QB). The Claimant had
th
been involved in a road traffic accident on 14
September 2001. Liability was admitted. She alleged
that she had suffered neck/back pain and fibromyalgia.
The claim was pleaded at in excess of £800,000. This
diagnosis was disputed and exaggeration pleaded.
Extensive surveillance was served after which the claim
was settled in the sum of £25,000. Post settlement, the
Defendant sought permission to bring contempt
proceedings. Mrs Justice Cox gave permission and
based her decision on the following points:
(1)
settlement of a claim does not extinguish
contempt;
(2)
there had been no unreasonable delay in making
the application;
(3)
there was a strong prima facie case against the
Claimant; and
(4)
there was a strong public interest in personal
injury claimants pursuing honest claims before
the court.
The case therefore moved to contempt proceedings at
the conclusion of which Mr Justice Coulson made a
finding of contempt: Walton v Kirk [2009] EWHC 703
(QB). In so doing, he made clear that important
considerations were the degree of exaggeration and the
circumstances in which it had been made, in particular
the misrepresentations about her condition which she
had made in documents submitted to third parties.
Furthermore, he found that the Claimant's account of
why litigation ended with her agreeing to such a modest
sum compared to that originally sought "stretched
credibility well beyond breaking point". The Claimant
was fined rather than imprisoned on this occasion given
that there had already been a substantial costs penalty
imposed.
A more recent case of a CRPS claim which ended in
contempt proceedings is Surface Systems Ltd v Danny
Wykes [2014] EWHC 422 (QB). The Claimant asserted
that his right arm was virtually useless and claimed £1.9
million. He had received £24,000 by way of interim
payments. After very damaging surveillance was served
showing normal use of his right arm, the Claimant filed a
notice of discontinuance and permission was given to
proceed to a contempt of court trial. He pleaded guilty on
the first day of trial and a prison sentence of 6 months
was imposed. Aggravating features included the size of
the damages initially claimed and the fact that nearly all
of the professionals involved in the case had been
repeatedly deceived.
Conclusions
Chronic pain claims are invariably very high value and
are complex in their presentation. In order to litigate
them effectively, advisors should obtain early and
extensive disclosure, commit to front loading costs and
select the expert team carefully in order to assess the
evidential strengths and weaknesses at the first
available opportunity.
Early Part 36 offers should be considered to maximise
litigation pressure, accounts given by the Claimant about
his/her condition at different stages to independent third
parties need to be the subject of particular scrutiny and
parties should be prepared to go to trial to achieve their
desired outcome on damages and costs.
Post trial options such as contempt proceedings are now
increasingly accessible and practical. They provide the
means with which to fight the dishonest claimant in
chronic pain litigation.
Nina Goolamali
[email protected]
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YAPP: COMFORT FOR
EMPLOYERS IN TIMES OF
STRESS
The Court of Appeal's judgment in Yapp v Foreign and
Commonwealth Office [2014] EWCA Civ 1512 is the
latest chapter in the history of employer's liability claims
arising out of work-related stress and psychiatric illness.
The Court's robust analysis of the issue of remoteness
of damage provides clarity in the law and is likely to
render it even more difficult for claims to be successfully
pursued in this field.
Background
Mr Yapp held the esteemed post of British High
Commissioner in Belize until June 2008 when he was
withdrawn from the post on "operational" grounds and
was suspended as a result of allegations of sexual
harassment and mistreatment of staff, such allegations
having been reported over the telephone by a former
Belizean Minister for Foreign Affairs, Mr Courtenay, who
was no longer in Parliament and whose party were in
opposition. Following a protracted disciplinary process
during which the allegations relating to sexual
misconduct (some of which found their way into the
British press) were found to be baseless, the Claimant
was found guilty of bullying staff but not of any sexual
misconduct. He was given a written warning and his
suspension was lifted. By that time, however, he had
developed a depressive illness and he remained on sick
leave until his retirement in 2011. The Claimant brought
proceedings against the FCO, alleging that his
withdrawal from the post of High Commissioner and the
manner in which the disciplinary process had been
handled constituted a breach of the contract of
employment and of the common law duty of care, and
that the stress resulting therefrom caused him to suffer a
depressive illness and consequential financial losses.
Judgment of Cranston J
At first instance, the Claimant was victorious. Cranston J
found that the withdrawal of Mr Yapp from post was both
a breach of the implied contractual term of mutual trust
and confidence ("the Malik term") and a breach of the
common law duty of care. In particular, he held that
before the decision to withdraw the Claimant from post
was made, he should have been informed of the case
against him, it should have been discussed with him and
there should have been some "basic analysis" of Mr
Courtenay's allegations. Had those steps been taken,
"There would have been no basis for the withdrawal
decision."
Cranston J went on to find that the Claimant was entitled
to recover in principle for both the financial losses
suffered as a result of the removal from post and for his
depressive illness: "If he had not been removed from his
position as High Commissioner to Belize he would never
have been affected." There was no issue as to the
financial losses arising from the withdrawal of post being
recoverable, and Cranston J dismissed the FCO's
contention that damages in respect of the depressive
illness and consequential pecuniary losses were too
remote. He found, “To my mind it could reasonably be
contemplated when the Claimant was appointed as High
Commissioner in 2007 that depression would be a not
unlikely result of a knee-jerk withdrawal from post."
The Appeal
The FCO appealed to the Court of Appeal on the
grounds that (1) the Claimant's withdrawal from his post
did not constitute a breach; and (2) even if it did, he was
not entitled to damages for his depression and its
consequences on the grounds of remoteness and/or
causation.
Breach of Duty
The Court of Appeal gave short shrift to the FCO's
argument on breach of the Malik term and the common
duty of care (albeit subject to the issue of remoteness)
and dismissed its challenge to the finding that the
Claimant's withdrawal, carried out as it was, was unfair.
The Court noted in particular that it was unnecessary for
the FCO to act as precipitately as it did, without any
further enquiries of any kind and without even putting the
allegations to the Claimant:
"It is rather surprising to see the FCO making a
decision of this gravity on the basis of a single
telephone conversation with a politician in the host
country: even apart from the question of fairness to
the post-holder, one might have expected some
consideration of whether the informant might have
his own agenda or be otherwise unreliable."
Causation
The Court of Appeal also dismissed the FCO's challenge
to Cranston J's findings on causation, noting in particular
that he evidently accepted the expert psychiatric
evidence to the effect that several factors accumulated
to cause the Claimant's illness, one of those being the
unfair treatment he suffered from the FCO and the sense
of injustice this caused him to suffer.
Remoteness
The FCO's appeal succeeded resoundingly at the last
ditch – on the issue of remoteness.
The FCO focused on the fact that there was nothing in
the Claimant’s history or the medical evidence to
suggest that he was vulnerable to developing a
psychiatric illness if treated unfairly in the manner found
and that, even if the illness was caused by any unfair
treatment on the part of the FCO, it was too remote a
consequence to sound in damages, either in contract or
tort. Reliance was placed on the well-known guidance of
Hale LJ in the leading stress at work case of Hatton v
Sutherland [2002] EWCA Civ 76.
The Court of Appeal undertook a detailed chronological
review of the case law on remoteness of damage in
claims of psychiatric injury caused by an employer,
noting that the essential question in contract is whether
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the damage in question was of a kind which was “not
unlikely” to result and that in tort it is whether the
damage was reasonably foreseeable, the former
requiring a higher degree of likelihood of damage
occurring than the latter. Reference was made to Walker
v Northumberland County Council [1995] ICR 702,
Gogay v Hertfordshire County Council [2000] IRLR 703,
Johnson v Unisys [2001] UKHL 13, Hatton v Sutherland
[2002] EWCA Civ 76, Barber v Somerset County Council
[2004] UKHL 13, Croft v Broadstairs & St Peter’s Town
Council [2003] EWCA Civ 676, Hartman v South Essex
Mental Health & Community Care NHS Trust [2005]
EWCA Civ 6, Bristol City Council v Deadman [2007]
EWCA Civ 822 and Dickins v O2 plc [2008] EWCA Civ
1144 and five key propositions were derived. These are
likely to be relied upon heavily by practitioners and merit
quoting in full:
“1.
2.
3.
4.
5.
In considering, in the context of the common
law duty of care, whether it is reasonably
foreseeable that the acts or omissions of the
employer may cause an employee to suffer
psychiatric injury, such an injury will not
usually be foreseeable unless there were
indications, of which the employer was or
should have been aware, of some problem of
psychological vulnerability on the part of the
employee – Hatton.
That approach is not limited to cases of the
Hatton type [ie where the illness arises from
the normal pressures of the job] but extends
to cases where the employer has committed a
one-off act of unfairness such as the
imposition of a disciplinary sanction – Croft
and Deadman.
However, in neither kind of case should that
be regarded as an absolute rule: Hatton
contains no more than guidance, and each
case must turn on its own facts – Hatton itself,
but reinforced by Barber and Hartman.
In claims for breach of the common law duty
of care it is immaterial that the duty arises in
contract as well as in tort: they are in
substance treated as covered by tortious
rules – Walker, Hatton. In order to establish
whether the duty is broken it will be necessary
to establish whether psychiatric injury was
reasonably foreseeable; and if that is
established no issue as to remoteness can
arise when such injury eventuates.
In claims for the Malik duty, or any other
express contractual term, the contractual test
of remoteness will be applicable – Deadman.”
While admitting that he had “not found this issue easy”,
Underhill LJ found that Cranston J was wrong to find that
it was reasonably foreseeable that the FCO’s conduct in
withdrawing the Claimant from his post without having
had the opportunity to state his case might lead him to
develop psychiatric illness. Given that the risk of
psychiatric injury was too remote, no duty to prevent it
arose and the question of breach became academic. He
based this finding on the fact that:
1.
2.
It will only be exceptional that an apparently robust
employee, with no history of any psychiatric illhealth, will develop a depressive illness as a result
even of a very serious setback at work.
The circumstances were not sufficiently egregious
to render it foreseeable that the Claimant’s
withdrawal from his post would cause him a
psychiatric injury. While withdrawal was a major
setback to his career, inevitably causing distress
and anger, it was not tantamount to dismissal or a
disciplinary sanction in itself. The Claimant was
withdrawn because the making of the allegations
made his position untenable, not because they had
been treated as established, which was the subject
of a proper investigation. There was an attempt by
the FCO to follow due process and the Claimant
was offered counselling.
Davis LJ agreed, holding:
“In the absence of the FCO having any prior
awareness, or reason to be aware, of any particular
susceptibility to stress or other relevant
vulnerability on the part of the Claimant it is not
enough, in my view, to assert that the exercise of
the power of summary withdrawal from post in itself
was such as to render psychiatric injury reasonably
foreseeable, and an employer, in a context such as
the present, is, after all, entitled to assume that an
employee is of “reasonable fortitude” in the
absence of knowledge, actual or constructive
indicating the contrary.”
The Court’s judgment on the issue of remoteness (and
its consequential finding on the common duty of care)
impacts on the Claimant’s claim for damages arising out
of his psychiatric injury only. The Claimant remains
entitled to damages for breach of contract, namely the
loss of the enhanced remuneration and allowances that
he would have received in his post had he not been
withdrawn from it. These were uncontroversial and the
case has been remitted to the High Court for a further
decision on quantum.
Discussion
The Court of Appeal’s decision to overturn the finding of
Cranston J on the issue of remoteness was a bold one
given, in particular, that Underhill LJ found it to have
been based, perfectly properly, “On a straightforward
judgment, based on his own experience and assessment
of human nature, that the gravity, and the unfairness, of
what happened to the Claimant was such that it could be
regarded as sufficiently likely that he would suffer an
illness as a result.” Cranston J had accepted that the
Claimant was “ostensibly robust” and the Court of
Appeal acknowledged that he was entitled, on the
authorities, not to treat that fact as decisive. Put simply,
the Court of Appeal took a different view as to whether
the FCO’s conduct was sufficiently devastating so as to
render it foreseeable that even a person of ordinary
robustness might develop a depressive illness as a
result. On that issue, Underhill LJ concluded, “This Court
is as well placed to make that judgment as [Cranston J]
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was; and, having reached a different conclusion I am, I
think, obliged to give effect to it.”
The Court of Appeal’s willingness to interfere in such
circumstances indicates a firm desire to close the lid on
claims of this type. Although Davis LJ expressly ruled
out, as “too absolutist an approach”, a general principle
that psychiatric injury is always to be regarded as not
reasonably foreseeable or too remote unless the
employer was, or should have been, already aware of
some relevant susceptibility or vulnerability on the part of
the Claimant, it is likely to be only in very exceptional
cases that such claims will succeed. Indeed, Yapp is
likely to make those representing claimants very
cautious to proceed in claims of this type in the absence
of any evidence of vulnerability on the part of the
Claimant, even where an employer has obviously acted
unfairly and in breach of the implied term of mutual trust
and confidence. The small number of cases which might
still succeed will probably be those akin to Melville v
Home Office, where the psychiatric condition arises out
of duties which have already been identified by the
employer as posing a potential risk of psychiatric harm
(in that case the Claimant was a healthcare officer in a
prison and his duties included the recovery of the bodies
of prisoners who had committed suicide, a task which
the Home Office had expressly recognised carried a risk
of injury). If the risk of psychiatric injury has in fact been
identified, it will be impossible for an employer to argue
that it was not reasonably foreseeable. Those cases
where - in the absence of evidence of susceptibility or
vulnerability on the part of a claimant - the psychiatric
injury arises out of the cut and thrust of the employment
relationship, and the not uncommon situation where
unjustified criticism is made or a disciplinary process is
unfair, are probably doomed.
Helen Wolstenholme
[email protected]
SECONDARY PSYCHIATRIC
VICTIM CLAIMS: DEFINING THE
SHOCKING EVENT
The common law has struggled for decades to decide in
what circumstances litigants can claim damages for
psychiatric harm. The law requires those who have not
been physically injured to have sustained their
psychiatric injuries as a result of a “shocking event”. This
requirement was tolerably clear in the kinds of cases that
came before the courts in the 1980s-90s but, since then,
claimants have attempted to claim damages in an
increasingly wider range of circumstances. There have
been two important decisions in 2014 in which the courts
have upheld defendants’ arguments that no relevant
“shocking event” occurred.
Before turning to these recent authorities, it is necessary
briefly to state the classic principles.
In Page v Smith [1996] A.C. 155, the House of Lords
confirmed the distinction between primary and
secondary victims. A primary victim is an individual who
has been physically injured or exposed to the risk of
such injury, and is permitted to recover damages for
psychiatric injury without needing to satisfy any further
requirements. A secondary victim is one who has not
been injured or exposed to the risk of injury. Such a
claimant can only succeed in a claim in limited
circumstances.
The leading authority on secondary victims remains
Alcock & ors v Chief Constable of South Yorkshire
[1992] 1 AC 310. The case arose from the disaster in the
Hillsborough Stadium on 15 April 1989 in which 96
people were crushed to death and hundreds more
injured. The plaintiffs were relatives and friends of
people who were in the stadium. The manner in which
they became aware of the disaster varied: some were
actually present in the stadium while others watched the
events unfold on television. Lord Ackner’s statement of
principles at pages 400F – 401F of the House of Lords’
judgment and Lord Oliver’s at page 411F-H have come
to be known as the Alcock control mechanisms:
 Relationship. There must be a “close tie of love and
affection” between the primary and the secondary
victim (page 397C per Lord Keith of Kinkel). A marital
or parental relationship is most common but is not
necessary.
 Shock. The injury must arise from “sudden and
unexpected shock” (page 411F per Lord Oliver), also
described as “the sudden appreciation by sight or
sound of a horrifying event, which violently agitates
the mind” but does not include “the accumulation
over a period of time of more gradual assaults on the
nervous system” (page 401F per Lord Ackner).
 Personal presence. The secondary victim must have
himself seen or heard the injury to the primary victim.
Lord Ackner said at page 400H that “merely being
informed of, or reading, or hearing about the accident
are not recoverable”. Lord Oliver said at page 411F
that the Claimant must have been “personally
present at the scene of the accident or was in the
more or less immediate vicinity and witnessed the
aftermath shortly afterwards”.
 Death, danger or injury and discomfort. Lord Oliver
said at p.411 that the secondary victim must have
witnessed the “death of, extreme danger to, or injury
and discomfort suffered by the primary victim”.
 Immediate aftermath. Lord Oliver said there must be
a “close temporal connection between the event and
the plaintiff's perception of it” (page 411G). In
McLoughlin v O’Brian [1983] AC 410 it was said that
being in the “immediate aftermath” of an accident
was sufficient (Lord Wilberforce, page 418H).
It will be seen that many of the requirements above refer
to an “event” or speak of “the accident”. This does not
cause difficulties where the injury to the primary victim
and the injuries witnessed by the secondary victim are
all more or less simultaneous. In a road traffic accident,
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for example, the Defendant driver’s negligence, the
accident and the injury almost always occur at more or
less the same time.
The term “the event” is more difficult to apply to cases in
which the Defendant’s negligence does not lead to an
immediate injury, or where the secondary victim does
not witness the initial injury but witnesses a later
deterioration.
The decision that has caused most difficulty in the recent
cases is North Glamorgan NHS Trust v Walters [2002]
EWCA Civ 1792. The Claimant was a mother who, over
the space of 36 hours, witnessed her baby son having a
fit, was told that he would be seriously brain damaged,
and held him in her arms as he died after life support
was terminated. The Court of Appeal found that all the
events over the 36 hours constituted an “inexorable
progression…a seamless tale with an obvious beginning
and an equally obvious end” such that the shocking
event requirement was satisfied. It is important to note
that by the time the 36 hour period began, the baby had
already sustained injury to the point that it could not
recognize his parents.
In Taylor v A Novo [2014] QB 150 the Court of Appeal
considered a case where the secondary victim
witnessed not the initial injury to the primary victim but a
later deterioration. A set of racking boards fell onto Mrs
Cindy Taylor whilst she was at work one day, causing
injuries to her head and left foot. The Defendant
admitted negligence for this. Mrs Taylor initially made a
good recovery but 3 weeks later suddenly collapsed and
died. The Claimant was Mrs Taylor’s daughter. She did
not witness her mother’s accident at work but did
witness the later collapse and death at home and
suffered Post-Traumatic Stress Disorder as a result.
The Claimant’s argument in the Court of Appeal was that
Mrs Taylor’s death and collapse constituted a shocking
event. Since this had been caused by the Defendant’s
negligence, the Claimant could recover. Despite its
attractive simplicity, the argument was unsuccessful.
The Master of the Rolls, Lord Dyson, gave the leading
judgment, with which Moore-Bick and Kitchin LJJ
agreed. Lord Dyson found that the Defendant’s
negligence caused an accident which had two
consequences: the first was the injuries to Mrs Taylor’s
head and foot, and the second was her sudden
deterioration three weeks later. Mrs Taylor failed to show
that she was sufficiently proximate to the first
consequence: “the relevant event is the accident. It is
not a later consequence of the accident” (paragraph 32).
Lord Dyson analysed the classic authorities on
secondary victims referred to above and also numerous
lower court decisions. His judgment constitutes an
important jurisprudential development in this area of the
law and two points are especially worthy of mention.
First, Lord Dyson cited with approval a passage in which
it was said that an unexpected and fatal heart attack
brought on by a “progressively deteriorating heart
condition” could not constitute a relevant “event” for the
purposes of a secondary victim claim. The passage was
the judgment of Auld J. in a case called Taylor v
Somerset Health Authority [1993] PIQR P262, P267, and
Lord Dyson MR cited it at paragraph 11 of his judgment
in Taylor v A Novo.
Second, Lord Dyson at paragraphs 13 and 33 of his
judgment disapproved an obiter dictum of Peter Gibson
LJ from the case of Sion v Hampstead Health Authority
[1994] 5 Med LR 170 in which the latter said that “a
breach of duty causing an incident involving no violence
or suddenness” could allow a secondary victim to
recover where “the negligence has fatal results and a
visiting close relative, wholly unprepared for what has
occurred…sustains a sudden and unexpected shock to
the nervous system”.
Taylor v A Novo has therefore clarified that where the
Alcock control mechanisms require the secondary victim
to have witnessed or been present in the immediate
aftermath of “the event” or “the accident”, this refers to
the initial injury sustained by the primary victim as a
result of the tortfeasor’s negligence. Witnessing or being
present in the immediate aftermath of a later
deterioration is insufficient.
But what of a case where it is not really possible for
anyone to witness the initial injury?
Such a case arose in Wild v Southend University
Hospital NHS Foundation Trust [2014] EWHC 4053
(QB). Mr Wild brought a claim for psychiatric injuries
sustained as a result of the stillbirth of his child. The
Defendant admitted that it was negligent in the
monitoring of the foetus’ growth and that this caused the
stillbirth but disputed Mr Wild’s claim for damages as a
secondary victim. The court found that Mrs Wild was in
law the primary victim. Mr Wild was a secondary victim.
In late 2008, Mr and Mrs Wild attended antenatal
appointments at which they were told that everything
was fine. The last such antenatal appointment took place
th
th
on 10 March 2009. On 20 March, Mrs Wild saw spots
of blood and attended the hospital with her husband,
whereupon medical staff discovered that Mrs Wild’s
st
baby was stillborn. On the following day, 21 March, Mrs
Wild had to deliver her stillborn child. It was not known
precisely when the child had died but it must have been
th
th
at some point between 10 and 20 March.
Mr Wild’s pleaded case and psychiatric evidence
vacillated between three different positions regarding
what constituted the “shocking event”: first, it was said
that everything between the last antenatal appointment
th
st
on 10 March and the stillbirth on 21 March was one
“seamless event”; later, it was said that the event began
th
with the realisation on 20 March that the child had died
st
and ended with the stillbirth on 21 March; and at one
point, Mr Wild’s expert psychiatrist said that the shocking
st
event was just the stillbirth itself on 21 March. The
judge – Michael Kent QC – appeared to be influenced, it
is respectfully submitted quite rightly, by these shifts in
position (see paragraph 19 of his judgment).
At trial the Claimant’s counsel sought to distinguish
Taylor v A Novo, which was the authority on which the
Defendant placed most reliance. It was argued that,
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contrary to the situation in Taylor v A Novo, where the
initial injury to the primary victim could not be observed,
the relevant “event” was the first manifestation of that
injury. Since the death of the child in utero was not
witnessed by anyone, the first manifestation of the injury
th
was the chaotic events in hospital on 20 March at
which Mr Wild was present and as a result of which he
suffered injury. The “shocking event” requirement was
therefore met.
The Defendant’s counsel relied on Taylor v A Novo and
argued that the secondary victim has to witness the “first
consequence for the primary victim”, which was the
death of the child in utero. Since Mr Wild did not witness
this and it was not argued on his behalf that he was
present in the “immediate aftermath”, he could not
recover. The Defendant went further and also argued
that the “shocking event” had to be synchronous with the
actual act which constituted negligence.
The judgment contains important observations in relation
to these arguments. First, Michael Kent QC expressed a
clear preference for the Defendant’s submission that a
delayed consequence cannot constitute a relevant
“event”, even where the first consequence for the
primary victim could not be observed (see paragraph 37
of the judgment). Second, the judge said that it is
“arguably...going too far” to say that the shocking event
must be synchronous with the act constituting
negligence (paragraph 42). Finally, the judge made the
important observation that there is a difficulty in squaring
Walters with Taylor v A Novo, because in Walters the
baby had already suffered serious injury by the time that
the “shocking event” began. The judge recognised that
there are two potential ways around the tension in the
authorities. The first is that the Defendant in Walters
does not appear to have taken the point about the
synchronicity of injury and shock, although the judge felt
that it seemed “a little unlikely” that this could have been
overlooked. The analysis preferred by the judge was that
the injury suffered by the baby in Walters before the
epileptic fit was “a treatable condition which could
effectively be ignored”; since the death only became
“inevitable” when the fit occurred, and the fit constituted
the beginning of the shocking event, the synchronicity
requirement was satisfied.
Michael Kent QC did not give a final resolution of the
above arguments because he found that the Claimant’s
case failed for another reason in any event: Mr Wild’s
injuries arose merely from the realisation, albeit in
shocking circumstances, that his child had died. A mere
realisation of death was insufficient. However, the
analysis in the judgment is vitally important and the
issues it raises will without doubt be fought out again in
the near future. It may be significantly more difficult to
win clinical negligence and disease “deterioration” cases
but they will continue to come before the courts because
Walters sits uncomfortably with the later authorities.
The secondary victim cases of Walters, Taylor v A Novo
and Wild are hugely important to personal injury
practitioners. Litigators need to take away the following
practical points from the recent case-law:
 It will be difficult for secondary victims to succeed
where they only witness a deterioration or late
consequence of an injury; claimants wishing to take
a risk and pursue such a case should rely on the
Walters decision and particularly the fact that the
primary victim in that case – the baby – had already
suffered injury by the time the shocking event
occurred.
 Claimants should establish as early in the life of a
case as possible precisely what is said to constitute
the “shocking event”. This should be spelled out
expressly in the psychiatrists’ expert report and the
Particulars of Claim, and it needs to be supported by
the factual witnesses. A lack of clarity on this point,
or even worse a shifting of position, is likely to be
highly damaging. A recent example is the clinical
negligence case of Brock v Northampton General
Hospital NHS Trust & another [2014] EWHC 4244
(QB) in which claims for psychiatric injury were
dismissed on the basis that the events relied upon by
the Claimants’ legal team were not the events that
were isolated as being particularly horrific by the
Claimants in their own evidence (see paragraphs 8687).
 Defendants should conduct a careful legal analysis
of the chronology of a claim and establish the dates
on which all of the following occurred: the
Defendant’s negligent act; the primary victim first
sustaining injury; the injury first becoming apparent;
the Claimant becoming shocked. The greater the
gaps in time between these events, the better the
chance of mounting a successful defence on the
basis of there being no relevant event.
On the other hand, a more straightforward case
might be:
“a quantum only”
Andrew Bershadski was junior counsel, led by
Caroline Harrison QC, for the Defendants in the recent
secondary victim case of Brock v Northampton General
Hospital NHS Trust & another [2014] EWHC 4244 (QB).
Andrew Bershadski
[email protected]
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QOCS away!
How the new one-way costs shifting rules affect
claims against third parties
It is a very familiar scenario: Mr A blames B Ltd for his
personal injuries, and B Ltd brings a Part 20 claim
against C Ltd, claiming that C Ltd was wholly or partially
responsible for the injuries. B Ltd might perhaps be Mr
A’s employer, which had contracted C Ltd to carry out
particular services. Or B Ltd might be a tour operator
sued by the holiday-making Mr A under the Package
Travel, Package Holidays and Package Tour
Regulations 1992 in respect of an accident at the hotel
of C Ltd (or perhaps C s.a. or C s.a.r.l.). This article will
consider how such litigation will be affected by the costs
shifting rules.
Under the new QOCS rules in CPR 44.13 to 44.17,
personal injury claimants enjoy the benefit of costs
shifting (subject to certain exceptions including strike out
and fundamental dishonesty). Accordingly, orders for
costs made against such a claimant may be enforced
only to the extent that the amount in costs does not
exceed the amount of any damages and interest
awarded to the Claimant. (Of course, these rules do not
apply to claims brought under a pre-commencement
funding arrangement – see CPR 44.17).
As is well-known, the result is that if a claimant loses a
personal injury claim to which the new rules apply, then
the victorious defendant will generally be able to obtain a
costs order against the Claimant but will not be able to
enforce it. In those circumstances, the Claimant will bear
his own costs and the Defendant, although successful,
will also have to bear his own costs.
What if that victorious defendant had brought a Part 20
claim against a third party, which fails because the main
claim fails? Where should the costs burden fall? The
normal rule is of course that costs follow the event, so
that the starting-point is that the Defendant will be liable
for the third party’s costs. The habitual remedy for a
defendant of seeking a “cut-through” order – i.e. adding
the third party’s costs to the costs that the unsuccessful
claimant has to pay to the Defendant – is clearly not an
option under the new rules. Can the Defendant argue
that costs shifting applies to the third party claim, so as
to spread the pain between both defending parties?
The answer has been determined in the case of
Wagenaar v Weekend Travel Ltd and Serradj [2014] Civ
1105, in which the Court of Appeal considered the
operation of the QOCS provisions for the first time. The
decision has important repercussions for the costs
consequences in contribution and third party claims
arising out of personal injury claims that fail.
The Claimant suffered a severe skiing accident while on
holiday in Chamonix and sued the Defendant tour
operator under the Package Travel (etc.) Regulations
1992, alleging negligence on the part of the Defendant’s
supplier, the Third Party ski instructor. The Defendant
then brought a Part 20 claim for indemnity or contribution
against the Third Party.
After a trial in May 2013, shortly after the QOCS rules
came into effect, the Claimant’s claim against the
Defendant was dismissed, as was the Defendant’s claim
against the Third Party. The Claimant’s claim had not
been funded by a relevant pre-commencement funding
arrangement. The judge at first instance ordered that
costs should follow the event in both the claim and the
Part 20 claim so that the Defendant was awarded its
costs against the Claimant and the Third Party was
awarded her costs against the Defendant, but he went
on to order that the QOCS rules applied to both claims,
so that neither costs order could be enforced. The net
effect was that each party was to bear her or its own
costs.
Both the Defendant and the Third Party appealed
against the costs orders.
The Defendant’s principal argument was that the judge
should not have applied the QOCS rules to the case at
all because they were ultra vires. It was submitted that
the power of the court in relation to costs which was set
out in section 51(3) of the Senior Courts Act 1981 could
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not be trammelled by rules of court such as the QOCS
rules.
The Court of Appeal held that this argument was wrong
and that the court’s power under section 51(3) to
determine by whom and to what extent costs are to be
paid is to be read subject to the power of the rules
committee to make rules of court concerning the
availability of an award of costs, the amount of such
costs and the exercise of the court’s discretion in relation
to costs. The rules committee was therefore fully entitled
to make the QOCS rules and the Defendant’s appeal
was dismissed.
The Third Party appealed against the judge’s application
of the QOCS protection to the costs order she obtained
against the Defendant. The Court of Appeal agreed with
the Third Party’s submission that the QOCS provisions
only applied to protect claimants who were bringing a
claim which included a claim for damages for personal
injuries (or the other claims specified in CPR 44.13(1)(b)
and (c)) but did not apply to the whole of an action in
which such a claim featured. Accordingly the judge had
erred in his interpretation of the provisions as extending
such protection to defendants who were claimants in
third party or contribution proceedings arising out of
personal injury claims.
The effect of the appeals was therefore that the Claimant
was entitled to the QOCS protection but the Defendant
was not. The practical effect was that, although
successful in defending the claim, the Defendant could
not recover its costs from the Claimant and, because of
the failure of the Part 20 claim, had to pay the Third
Party’s costs. As the Defendant submitted, it would have
been better off if both claims had succeeded.
Lord Justice Vos considered whether this would result in
injustice (paragraphs 40 to 43):
40. Thus, in my judgment, CPR Rule 44.13 is applying
QOCS to a single claim against a defendant or
defendants, which includes a claim for damages for
personal injuries or the other claims specified in
CPR Rule 44.13(1)(b) and (c), but may also have
other claims brought by the same claimant within
that single claim. [.. ]
CPR Rule 44.13 is not applying QOCS to the entire
action in which any such claim for damages for
personal injuries or the other claims specified in
CPR Rule 44.13(1)(b) and (c) is made.
41. I am fortified in my view as to the proper
construction of the rule implementing the QOCS
regime by a consideration of the effect of the
judge’s construction on some of the more normal
cases which I have already mentioned. In medical
negligence claims, a claimant may sue a doctor, a
health authority and the manufacturer of some
piece of medical equipment. It would be strange if
there could be no costs orders enforced between
the defendants at the end of a long battle in the
cross contribution claims between them where it
was ultimately proved that the doctor and the
health authority were blameless but the injury was
caused by a defective piece of medical equipment.
In such a case, the claimant’s damages might be
agreed, and the argument might be almost wholly
between the defendants – or possibly third parties,
if any of them were not originally sued.
42. In road traffic cases, the typical situation is equally
revealing. Injured passengers in a car may sue the
driver of the car in which they are injured. That
driver may seek to pass on the blame in CPR Part
20 proceedings to any number of other insured
parties, such as another driver involved in the
collision, or a local authority responsible for
maintenance of the road. Again, there might be
little argument as to the claimant’s entitlement to
damages, but significant dispute between the
insured parties as to who was to blame. It would be
surprising if there could be no effective costs
orders made between defendants in their
contribution claims (if there was ultimately more
than one) and between defendants and the third
parties in the additional claims made.
43. The injustice in this case, to which Mr Cannon
specifically pointed, was that the third party could
not be joined as a defendant by the claimant
because of jurisdictional issues, so the defendant
had to join the third party if it wanted to make her
liable. But that is not a special case. The defendant
was a commercial party in the business of
supplying packaged skiing holidays. The fact that
its insurance was for some reason vitiated in this
case is nothing to the point. It chose, in its own
commercial interests, to bring the third party into
the proceedings as a third party because, no doubt,
it thought it commercially to its advantage to do so.
In doing so, it would have weighed up the pros and
cons including the costs consequences, which, on
the defendant’s own case, it expected to be the
ones normally to be expected in litigation before
these courts (before QOCS were introduced). The
defendant could have chosen to resist the
claimant’s claim on its merits and saved itself the
trouble and expense of joining the third party and
the risk of an adverse costs order. It did not do so.
Accordingly, I find myself unable to agree with the
judge that the outcome, even in this case, of the
construction that I have adopted creates a serious
injustice for the defendant. The public policy that
has led to the QOCS regime cannot be regarded
as creating injustice in any sense, whether or not
the defendant is in any particular case actually
covered by insurance; and the result in relation to
the costs of the CPR Part 20 claim is precisely
what the defendant ought to have expected when it
joined the third party.
The impact of the QOCS provisions plainly requires
careful economic consideration where indemnity or
contribution claims are contemplated by defendants to
personal injury claims, whether arising from accidents
abroad or otherwise.
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To reiterate, the effect of the decision in Wagenaar as to
the QOCS rules is that if A’s personal injury claim fails
so that B’s contribution claim against C fails as well, A
bears his own costs and has an unenforceable costs
order against him; B has to bear its own costs; and B
has to pay C’s costs. B therefore pays two lots of costs
in spite of winning.
As a result, prudent defendants will have to pause for
even more thought before bringing Part 20 claims. This
is particularly true where the claim by the Claimant
appears weak or risky. It plainly remains for the
Defendant, B Ltd in the example considered above, to
decide whether the Claimant’s case is so weak that the
potential benefit of bringing in C Ltd is vastly outweighed by having to pay C’s costs if B can see off A’s
claim.
The overall lesson in respect of the costs of defendants
to personal injury claims bringing third party claims must
perhaps therefore be a combination of “look before you
leap” and “forewarned is forearmed”.
Howard Palmer QC and Lucy Wyles appeared in
Wagenaar for the successful Third Party, Ms Serradj,
instructed by Pierre Thomas & Partners.
Lucy Wyles
[email protected]
In some cases, the costs risk might be avoided or
ameliorated by B’s being able to persuade C to take over
B’s defence. Alternatively, B may be able to fortify its
defence of A’s claim by relying on C’s cooperation in
respect of witnesses and disclosure.
In other cases, B might prefer to wait until the outcome
of A’s claim is known before bringing a contribution claim
against C. This might be an available course where the
Civil Liability (Contribution) Act 1978 applies, with the
relevant limitation period of 2 years from judgment or
settlement (under section 10 of the Limitation Act 1980).
If the accident occurred abroad and C is domiciled
abroad, however, this course will be bestrewn with
pitfalls. There is a substantial risk that the basis on which
the English court would have jurisdiction over the claim
against the foreign-domiciled C will evaporate once the
main claim between A and B has been determined or
settled. Further, a foreign law may apply to the claim
between B and C, so that a foreign limitation period
applies. In those circumstances, the Defendant who
cautiously waits before bringing the Part 20 claim
because of the costs implications may find that the third
party claim is time-barred.
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Christopher Russell
Christopher is a specialist in personal injury; he also has expertise in health and safety, environmental health,
product liability, especially Food, and professional and clinical negligence. He is recognised in Chambers UK
2015 as “an excellent technical lawyer and a formidable trial advocate”
John McDonald
John’s practice focuses on personal injury, insurance and construction-related claims. He has particular
expertise in the law of motor insurance and he is praised in Chambers UK for his “comprehensive knowledge,
innovative approach and ability to get to the nub of complex policy issues”. John also acts in asbestos, stress
and other disease claims and in claims involving technical and accounting evidence.
Lucy Wyles
Lucy is an experienced common law advocate, practising in the areas of personal injury, clinical negligence and
insurance. She has considerable expertise in dealing with claims with an international element, having built on
her knowledge of EU law. She is recognised in Chambers UK 2015 as “A lawyer with a brilliant memory, she has
a winning combination of being very clever and also very pragmatic in seeing the end game and what the clients
are trying to achieve."
Nina Goolamali
Nina has a very well established practice in catastrophic injury and sports-related litigation. She is well known
for her ability to defend in sensitive high value cases particularly in the field of employer’s liability and primarily
claims arising out of bullying, harassment, chronic pain, occupational health including WRULD, VWF & stress
at work. Legal 500 and Chambers UK consistently list Nina as a Leading Junior in her chosen fields and she is
acknowledged as being "An exceptional senior junior, who just keeps getting better. She is incredibly good on
paper, and very detailed and forensic in her approach."
Helen Wolstenholme
Helen has a broad personal injury practice covering catastrophic injury; employer’s liability (including industrial
disease and psychiatric injury); occupiers’ liability and defective premises; accidents abroad; RTAs (including
claims involving allegations of fraud); the Animals Act; and product liability / Sale of Goods Act claims. She has a
particular interest in cases involving psychiatric injury or thorny questions of causation and has published articles
in the New Law Journal and the Solicitors Journal.
Andrew Bershadski
Andrew appears regularly in trials, disposal and interim hearings in personal injury matters. He is developing a
busy advisory practice in occupiers’ liability, highway and employers’ liability cases. He has recently given a
seminar on the operation of the Occupiers' Liability Acts 1957 and 1984, with a focus on practical steps in
defending claims brought under those Acts. Andrew has experience of jurisdictional issues in personal injury
cases, and in claims brought under the Package Travel, Package Holidays and Package Tours Regulations
1992.
Full CVs are available at www.2tg.co.uk
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