Since the last edition of this newsletter there have been numerous appellate court decisions involving issues of liability. In this piece we attempt to summarise and tease out important points from eight cases. We begin with three cases involving the duties imposed on employers, and then look at a couple of recent material contribution cases (it would appear that the Fairchild exception isn’t so exceptional after all) and finish with three recent road traffic accident decisions.

Duties imposed on employers: In the Scottish case of Kennedy v Cordia (Services) LLP 10  the Supreme Court heard an appeal in the type of slip case which comes before judges at first instance up and down the country on a daily basis. The success of the appeal might cause the savvy to purchase shares in any company producing anti-slip attachments for footwear.

Miss Kennedy was a carer. One wintry day she approached the home of an elderly  lady  for  whom she provided home care, via a public footpath. There was snow on the footpath which sat upon underlying ice, and when Miss Kennedy walked on it she fell and suffered an injury. The claimant said that the defendant had breached both its statutory and common law duties in not adequately assessing the risks to which she was exposed while at work (in breach of s3(1) of the Management of Health and Safety at Work Regulations 1999) and in not providing suitable protective equipment (in breach of s4(1) of the Personal Protective Equipment at Work Regulations 1992). The Supreme Court agreed with the Lord Ordinary  (who  had  been  overturned on appeal) that the defendant was in breach of these regulations: the risk assessment was inadequate as the defendant had assessed the risk of a fall as “tolerable”, when in fact the risk of a fall for home carers was “likely” and serious injuries might be sustained, and further no consideration had been given to the possibility of individual protective measures, but rather only a control measure of last resort – instructions to wear appropriate footwear – had been implemented. The Supreme Court held that the Lord Ordinary had been right to find that anti-slip attachments for footwear should have been provided, and would have been provided had there been an adequate assessment of risk, and that it could be inferred that these attachments would have prevented the accident.

The case is of some interest not only in reminding practitioners of the  importance  of  risk  assessments in demonstrating the adequacy or inadequacy of precautions taken, but also in demonstrating the burden which the PPE regulations place on employers. All that was required for the PPE regulations to become engaged was for the claimant to be exposed to risk during the course of her employment, even if that risk was one which people would face in their everyday lives such as the risk of encountering snow and ice on paths.

Finally, the extensive analysis by the Supreme Court of the appropriate use of expert evidence is worthy of consideration, leading as it did in Kennedy to the perhaps surprising conclusion, particularly in the post-Jackson reform era, not only that the claimant’s reliance on a health and safety expert, who provided evidence on the suitability of the risk assessment and on the benefits of anti-slip attachments for footwear, was appropriate, but also that counsel for the claimant would have had difficulties in presenting her case properly without his evidence.

Now to two cases in which claimants have been unsuccessful in claims brought solely pursuant to the common law.

In Humphrey v Aegis Defence Services Ltd 11 the Court of Appeal held that the defendant employer, which provided protection services in connection with the reconstruction of Iraq after the war of 2003, had not breached its duty of care to the claimant (a former marine) by allowing Iraqi interpreters, who did not have to demonstrate the requisite level of fitness beforehand, to engage in an exercise designed both to ensure that they could respond appropriately to meeting armed insurgents and to test their fitness. The exercise required the interpreter to carry a loaded stretcher with the claimant and to pretend to withdraw under fire. In the course of the exercise the interpreter dropped the stretcher because of fatigue and the claimant suffered a shoulder injury. The Court of Appeal held that the judge at first instance had been entitled to have regard to the scarcity of interpreters, the importance of their 10 [2016] UKSC 6 11 [2016] EWCA Civ 11 role, the social utility of the reconstruction work, and the foreseeable risk of minor soft tissue injury only, in deciding that the defendant had acted reasonably.

Some of the facts of Rathband & Essery v Chief Constable of the Northumbria Constabulary 12 will be familiar to those readers who recall the manhunt for Raoul Moat in the summer of 2010. Shortly after midnight a day after shooting his former girlfriend and her new partner, Raoul Moat made a 999 call to the police saying that he was “hunting for officers now”. Within minutes he shot PC David Rathband at close range in the face, causing him devastating injuries. PC Rathband was not warned of the threat before he was shot as the superintendent in command that evening had decided to arrange cell site analysis (which might establish the area in which the call had been made) and a proper analysis of the contents of the call before any warning was issued to police officers.

Males J decided that the defendant had not owed any duty of care to PC Rathband. Whilst the defendant would ordinarily owe officers within his force a non-delegable duty to take reasonable care for their safety by ensuring both the provision and operation of a safe system of work, that duty could be excluded as a matter of public policy (per Hill v Chief Constable of West Yorkshire).13 The duty was likely to be excluded from operational decisions concerning the investigation and prevention of crime taken under the pressure of time, particularly when the imposition of a duty might lead to defensive policing. The decision taken by the superintendent was one such decision and thus no duty of care was imposed on the defendant. In any event, if the defendant did owe PC Rathband a duty, the Judge found the superintendent had acted reasonably in delaying the issue of any warning: she had acted as other commanders might have done facing a similar dilemma.

Fairchild exception not exceptional: Regular readers of the newsletter will recall the decision of our erstwhile Head of  Chambers, Mr Justice  Jay, in the  case of Heneghan v Manchester Dry Docks & others 14  which we covered in the February 2015 edition. The issue in the case was when a worker had been exposed to asbestos by a number of different employers and had lung cancer as a result of his exposure, did the more “benevolent” approach to causation in mesothelioma cases established in the case of Fairchild v Glenhaven Funeral Services 15 (proof of material increase in risk as opposed to proof of causation of damage) extend to multi-defendant asbestos-induced lung cancer claims. At first instance, the defendants argued successfully that epidemiological evidence could not be  used  in this case to identify which of the defendants was responsible for the culpable exposure. Therefore, the claimant would be unable to prove his case against any of the defendants on conventional grounds even though they each admitted they had negligently exposed his father to asbestos. In those circumstances, Jay J found that the principle in Fairchild had to be extended to lung cancer claims as they are legally indistinguishable from mesothelioma claims. However, a consequence of this analysis was that the approach to apportionment set out in the case of Barker v Corus UK Ltd 16 also applied and the defendants were only liable to pay in respect of their ‘share’ of the cumulative exposure.

Upholding Jay J’s findings when delivering the judgment of the Court of Appeal,17 the Master of the Rolls confirmed that there is a fundamental difference between making a material contribution to an injury and materially increasing the risk of an injury. The material contribution test as prescribed in Bonnington Castings Ltd v Wardlaw 18 which would allow a claimant to recover damages in full from a defendant who had materially contributed to his injury, cannot apply in circumstances where it cannot be proven which, if any, defendant caused the cancer-inducing exposure. In those circumstances, as in the mesothelioma cases, the only plausible means of bridging the evidential gap is by way of the Fairchild exception.

Bonnington redux: Bonnington Castings also formed the subject of the judgment of the Privy Council case of Williams v The Bermuda Hospitals Board.19

This case concerned a negligent delay in providing a patient, Mr Williams, with a CT scan and subsequent treatment for a suspected appendicitis. As a result of the various delays in his treatment, Mr Williams suffered several hours of pain, sepsis from a ruptured appendix and injury to his heart and lungs.

At first instance the judge found  that  while  there had been negligence, it could not be proven that the culpable delay had caused the patient’s complications: sepsis was setting in anyway and it was not possible to demonstrate that an absence of delay in ordering the necessary scans would have avoided it.

This judgment was overturned in the Court of Appeal where it was held that the first instance judge had raised the bar on causation unattainably high:  the  proper test was whether the hospital’s breaches of duty had materially contributed to his injury.

Before the Privy Council counsel for the defendant hospital argued that the material contribution test in Bonnington could not apply. It was maintained that Bonnington was distinguishable from Mr Williams’ case because it concerned the development of a disease in response to two simultaneous sources – silica originating from the operation of non-tortious pneumatic hammers and silica escaping from swing grinders as a result of the defendant’s breach of duty. Mr Williams’ case, in contrast,  concerned  the  later  development of sepsis due to the hospital’s delay after naturally- occurring sepsis had already begun.

This submission was given short shrift by the Privy Council which confirmed that, as a matter of principle, successive events are capable of making a material contribution to a claimant’s injury. Where it was right to infer that, on the balance of probabilities, the hospital had materially contributed to the progression of Mr Williams’ sepsis, it should be found to have materially contributed to the damage sustained to his heart and lungs.

RTA news: The Court or Appeal considered the vexed issue of the illegality defence in the case of Smith v Stratton & MIB 20 at the end of last year. The claimant was a passenger in a vehicle in which he suffered a brain injury following a collision involving the police.

The vehicle was driven by the first defendant and his insurers had avoided the relevant insurance policy for non-disclosure of material facts and misrepresentations made before the policy took effect; accordingly, he was an uninsured driver and the MIB became responsible to meet the claimant’s claim against the first defendant if a judgment against the latter were unsatisfied.

There was no question but that the driver had driven negligently. The MIB’s case was that they were in a joint enterprise of dealing cannabis from the car, that they had made off in the car when spotted by the police and that this had led directly to the collision and to the appellant’s injuries. The MIB claimed to be entitled to avoid liability in reliance on either or both of two exceptions in clause 6 of the Motor Insurers’ Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999 and/or the common law maxim ex turpi causa non oritur actio (the illegality defence).

While there was no direct evidence as to the claimant’s involvement in the drug deal, the judge held the cumulative effect of all the evidence was to satisfy him that the MIB had proved to the relevant standard that the appellant had been involved in dealing in drugs from the car that evening. The Court of Appeal upheld the judge’s findings that there was a joint criminal enterprise in which the claimant (amongst others) was engaged, and that this was sufficient therefore for the MIB to establish both the illegality defence and to avoid liability pursuant to clause 6 of the 1999 agreement.

In other news, the Court of Appeal dismissed an appeal against the rejection at first instance of the claim in the case of Fertek v Aviva Insurance UK Ltd.21 This was a series of linked appeals in cases in which the claimants were alleged to have been involved in staged accidents with a generic modus operandi, namely a rear-end shunt into the claimants’ vehicles after a decoy vehicle swerved and gave them a pretext for braking suddenly.

At trial, the judge considered the claimant’s evidence to be unsatisfactory, and accepted the defendant’s evidence that the claimant had braked harshly when there was no reason to do so. He found that it could not be proved that the collision arose from a staged accident  involving  another  vehicle,  although  it  was highly suspicious, but that the accident was caused by the claimant’s completely unnecessary act of bringing his car to a complete halt, done deliberately to cause the collision. He therefore dismissed the claim.

The appeal was put on the basis that the judge, having rejected the staged accident scenario did not give the claimant the opportunity to deal with the scenario that the judge had held to have occurred. This was rejected by the Court of Appeal on the basis that the factual scenario as found by the judge did not require any different evidence from the staged accident scenario which had been put fully to the appellants. There had been therefore no error at first instance.

Lastly in Wormald v Ahmed 22 the Court of Appeal upheld the judge’s finding at first instance that the defendant had been primarily liable for a collision with a pedestrian where he had failed to monitor the road ahead, albeit a finding of 40% contributory negligence was made.