Heath McCabe v Cheshire West and Chester Council (1) and Bam Nuttal Ltd

Chester County Court 26th June 2014
HHJ Halbert

The claimant sustained injuries in October 2009 when he fell down a flight of steps on a public highway. It was 11pm and the Claimant was walking his dog. He claimed that he fell because it was dark at the time and the streetlight intended to illuminate the steps was not working.  

Mr McCabe brought proceedings against the local authority and the streetlight contractor for compensation alleging breach of duty for failure to maintain the light in question.

The local authority was responsible for the footpath and the lighting. It had contracted with a streetlight contractor for the maintenance of the streetlights. Both defendants accepted that the streetlight was not working at the time. The key issue was whether there was a “duty” to light the highway.

The claimant alleged that section 97(3) Highways Act 1980 expressly provided for compensation to be paid to anyone who suffered damage related to the execution of works in order to light the highway. The defendants submitted that street lighting was provided pursuant to a power contained in section 97 of the Act and that the failure to repair the streetlight was a failure to exercise a power rather than a breach of a duty.

It was held by the trial judge that section 97(3) was designed to protect those who were directly affected by the carrying out of works to provide streetlights. It was not intended to create liability for failure to maintain the lights.  Liability could be established only if the authority performed some positive act that created a danger, whereas failure to maintain the streetlight did nothing to increase the existing danger and amounted to nonfeasance. In the absence of a duty of care, the nonfeasance did not give rise to any liability and the case was dismissed.

On the issue of contributory negligence, the Judge found that had the Claimant been successful, he would have been 50% liable for his injuries on the basis that he walked on the footpath knowing that he could not see what he was walking upon or the nature of the terrain in front of him and to do so was foolhardy and significantly causative of the accident.

This case reinforces the legal principle that a local authority does not owe a duty to the public to light the highway

Michael Landau v Big Bus Co Ltd (1) and Zeital (2) [2014] EWCA Civ 1102

The claimant brought proceedings for damages for serious injury to his right leg as a result of a collision that occurred at a traffic light controlled junction in central London.  Three vehicles had stopped at the junction; the first a tourist bus operated by the first defendant and being driven in the outside lane, the second a VW Passat motor car driven by the second defendant in the inside lane and the third a 125 cc motor scooter being ridden by the claimant. 

When the lights changed to green, the vehicles moved forward and started to negotiate the sharp left-hand turn. The claimant's scooter became trapped between the rear nearside of the bus and the rear offside of the car before any of the vehicles had completed the turn. The claimant sustained a serious injury to his right leg, which subsequently necessitated a below-knee amputation.

The position of the claimant’s scooter was a key issue at trial.  The judge considered it had been unlikely that the first and the second defendant had both failed to check their wing mirrors at the lights or, if they had checked them, that they had both failed to see the claimant if he had been in the position he said he had been in, particularly given that he had been wearing a high visibility vest. It was much more likely that at least one of them would have looked in their mirror and would have seen the claimant if he had been there.

While not making a positive finding, the judge considered it had been more likely than not that the claimant had been in a position that had meant he had not been visible to one of the defendants, and probably to both, and thus had been in the blind spot of at least one of them.  He found that the Claimant could not have been where he had said he had been while waiting at the lights. He found that, in taking the turn as they had, the first and second defendants had not fallen below the reasonable standard of care; to have expected them to have driven in any different way would have been to impose a counsel of perfection.

The judge expressed the view that in taking a deliberate decision to pass between or travel with the bus and the car as they undertook the left-hand turn, the claimant had misjudged the situation. Had he held back, the accident would not have happened. Neither the first nor the second defendant had been negligent and what the claimant had done had represented a failure to take reasonable care for his own safety. The judge further held that, even if he had found that the driving of either of the other two had fallen below a reasonable standard, he would have found the claimant largely to blame, certainly no less than 75%. The claimant’s appeal was dismissed.  Held:

  • It had been open to the judge to have examined what had happened when the vehicles had started moving at the lights on the basis that the first defendant and the second defendant had each been entitled to depart from the traffic lights believing that there had been no motor scooter in the vicinity of the rear of their vehicles. The relevant and crucial finding of fact had been that the claimant had not been in the position where he had said he had been. That had been the central issue of dispute between the parties. The judge's finding in relation to it had mean that the claimant had failed to prove his case that the first and the second defendant ought to have seen him while stationary at the lights. The judge's suggestion that the claimant had been in a blind spot behind the VW Passat seemed to have been plausible and supported by evidence at the trial. In support of his finding that the claimant had not been in the position where he had said he had been, the judge had attached weight, as he had been entitled to do, to the unlikelihood of both first and the second defendant having failed to check their wing mirrors at the lights or, if they had checked, of having failed to see the claimant. The same point supported the judge's suggestion that the claimant had been positioned in a blind spot at the lights.
  • There was no doubt as to the correctness of the judge's conclusion that the first defendant’s driver had driven with reasonable care. In considering the second defendant's manoeuvre on the turn, the judge had grappled with the issue conscientiously and, in the circumstances, there was no proper basis to interfere with his conclusion that the second defendant had used all reasonable care.

Sloan v Rastrick High School Governors [2014] EWCA Civ 1063

The claimant had been employed by the defendant school as a learning support assistant. She had responsibility for providing support and assistance to pupils with mobility and similar physical problems. Her work included pushing students in their wheelchairs and assistance with other activities that required movement.

On 6 September 2008, the claimant commenced working on her own following a period of training and colleague shadowing. On 17 September, she experienced pain in her shoulder and back after pushing a student in her wheelchair. On 22 September, her GP prescribed her pain relief and muscle relaxants and she was off work for the whole of the week. On 29 September, the claimant returned to work and arrangements were made so that she was not required to push wheelchairs, although she might have done so on one or two occasions. In October, she gave one week’s notice and left the defendant's employment.

The claimant sought damages for personal injury. She claimed to have suffered a soft tissue injury as a consequence of pushing one or more students in their wheelchairs which had resulted in chronic and continuing pain in her shoulder and back up to the point of trial. She contended that, contrary to regulation 4 of the Manual Handling Operations Regulations 1992, the defendant had failed: (i) to avoid the need for her to undertake a manual handling operation which involved risk of injury; (ii) to make any suitable and sufficient assessment of any such manual handling operations; and (iii) to take any or any appropriate steps to reduce the risk of injury arising out of such manual handling operations to the lowest level reasonably practicable.

The recorder found that the claimant had suffered a strain on 17 September that had resulted in symptoms over the following two weeks. She found that any further symptoms had arisen from constitutional and degenerative changes not caused by or connected with the strain. Further, the defendant had not been in breach of the Regulations in any of the respects alleged by the claimant.

The claimant appealed submitting that the recorder had misdirected herself as to the burden of proof under the Regulations in stating that the claimant was required to prove that the defendant had breached its statutory duty and that that breach had caused injury and loss. Further, that the recorder had failed, inter alia: (i) to make any clear finding as to whether the defendant could, so far as reasonably practicable, have avoided (by the use of powered wheelchairs for all pupils) the need for the claimant to have undertaken manual handling operations that involved a risk of injury and, to the extent that any finding had been made, it had been perverse; and (ii) to make any clear finding that a suitable and sufficient risk assessment had been made by the defendant and, if such a finding had been made, it had been perverse because the only risk assessment provided by the defendant had, on its face, been manifestly incomplete and insufficient.

The appeal was dismissed.

  • It was clear that the recorder had made her findings and reached her conclusions on the evidence as a whole, without any reliance on the burden of proof. Having assessed the witnesses, she had made firm findings of primary fact. Her conclusions on the issues had been equally firm and uninfluenced by any question on the burden of proof. In any event, it was apparent that when she had come to make those findings, she had, in fact, correctly applied the burden of proof (being that the employer was required to prove that it has taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable and that, if it had failed to do so, the Claimant's injury was not caused by such failure).
  • There had been a clear finding by the recorder that it had not been reasonably practicable to have avoided the use of manual wheelchairs and, in the light of the evidence, it could not be said that it had been an unreasonable conclusion for her to have reached.
  • The Regulations did not specify particular categories of person who had to prepare risk assessments but, clearly, in order to comply with regulation 4, a risk assessment had to be prepared by a person with the necessary training and experience required for the purposes of the risk assessment in question.

The recorder had considered that the risk assessment had satisfied the requirements of regulation 4 of the Regulations. In the light of the contents of the risk assessment, she had been entitled to reach that conclusion. The evidence had amply justified the conclusion that the person who had had responsibility for the preparation of risk assessments at the school had been qualified to prepare the assessments relevant to the present case. The evidence had justified the recorder's conclusion that the risk assessment had been suitable and appropriate.

Zurich Insurance Plc v Kay and others [2014] EWHC 2734 (QB)

The first defendant allegedly sustained an injury as a result of a slipping hazard in a car park in St Helens which was the responsibility of Westgrove cleaning services. Westgrove was insured by the claimant Zurich in respect of its potential liability. The first defendant made a claim in respect of that alleged fall.  His account of the accident had been supported in witness statements provided by the second and third defendants who were his wife and stepson respectively.

The first defendant valued his claim to be in the region of £750,000. The claimant alleged that the first defendant sustained the injuries in a fall while on holiday abroad and applied to the court to commit the three defendants to prison for contempt of court. The claimant contended that his case was based on an audacious lie and that the first defendant and his family had attempted fraudulently to repackage a vacation mishap as a very valuable claim for compensation. To succeed in the application the claimant had to prove the alleged deception to the criminal standard.

The claimant submitted that the evidence suggested that: (i) that the first defendant had told his colleagues after his return from holiday that he had fallen whilst abroad;(ii) the first defendant's credibility generally was poor and that he had a propensity to lie to serve his own ends; (iii) the route alleged to have been taken by the first defendant through the car park and his motive for the journey were both implausible; and (iv) the evidence of his wife and stepson was untrue and motivated by the imperative of bolstering up his case that the accident had happened in the car park.

The application was dismissed. After a lengthy and detailed consideration of the evidence, and with the advantage of having been able to assess the demeanour of the witnesses who had given evidence, despite the fact that the Court considered that the first defendant had deliberately lied on some issues, the court could not be satisfied so that it was sure that the first defendant his wife and stepson had lied about where the accident had happened. The applications to commit the defendants for contempt therefore failed.

Jet2.com Limited v Ronald Huzar [2014] EWCA Civ 791
James Dawson v Thompson Airways Limited [2014] EWCA Civ 845

Two recent Court of Appeal decisions on the application of the current regulations relating to air passenger compensation claims for delay.

Jet2.com Ltd v Huzar [2014] EWCA Civ 791

The Denied Boarding Regulations (EC261/2004) establishes a system of compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.  The claimant sought compensation for his flight delay pursuant to those regulations.  The issue in this case was whether “technical problems” amounted to a defence to the claim such that, pursuant to Article 5(3) of those regulations, the carrier was not obliged to pay compensation.

Article 5(3) provides that “An operating air carrier shall not be obliged to pay compensation ... if it can prove that the cancellation (delay) is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

The air carrier alleged that the delay had been the result of a wiring defect in the fuel valve circuit that could not have been prevented by prior maintenance or visual inspection. Accordingly, it was unexpected, unforeseen and unforeseeable, which, it was argued, constituted extraordinary circumstances under the exception to the obligation to provide compensation contained in Article 5(3).

The district judge made a finding of fact that the fault was unexpected and could not have been predicted by a regular system of inspection or maintenance but, on appeal, the judge allowed the claimant's appeal, finding that the exception did not apply and awarded compensation. The defendant appealed to the Court of Appeal.

Appeal dismissed.

The previously decided case of Wallentin-Hermann v Alitalia (C-549/07 2009) had already limited the definition of extraordinary circumstances in the context of technical problems causing delay or cancellation and established that, when considering whether there were extraordinary circumstances, the court had to focus on the source or events which caused the problem, not its resolution.   In the case that a technical problem would not constitute an extraordinary circumstance unless the “problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its control”.

The main judgment delivered by Elias LJ in the Court of Appeal concluded that difficult technical problems arose as a matter of course in the ordinary operation of the carrier's activity. Some might be foreseeable and some not, but all were properly described as inherent in the normal exercise of the carrier's activity. They had their nature and origin in that activity, and were part of the wear and tear. The judge had been right to say that the extraordinary circumstances defence had not applied, although not for the reasons he had given.

Dawson v Thomson Airways [2014] EWCA Civ 845, [2014] All ER (D) 154

The issue in Dawson was whether the limitation period was two years under the Montreal Convention or six years under the Limitation Act for bringing a flight delay claim.

Mr Dawson's flight from Gatwick to the Dominican Republic was delayed and arrived at its destination over six hours late as a result of staff shortages. Dawson brought a claim pursuant to EU Regulation 261/2004 for compensation for the delay he experienced. Thomson Airways accepted they would have to compensate Dawson had he brought his claim in time, but argued that the limitation period was two years as it was governed by the Montreal Convention. Dawson contended that limitation should be considered in accordance with Sec 9 Limitation Act 1980 which provided for six years. Dawson was successful at first instance before HHJ Yelton in the Cambridge County Court. The airline appealed to the Court of Appeal.

In dismissing the airline’s appeal, the Court of Appeal was obliged to follow the earlier decisions of the European Court and particularly that of Cuadrench More v Koniinklijke Luchvaart Maatschappij N.V. (Case C-139/11) in which the European Court held that the time limit for bringing a claim under EC261/2004 was a matter for national law as the provisions as to compensation contained in that Regulation fall outside the terms of the Montreal Convention.  In this case, a six year limitation period applied as set out in English law.

Dowdall v Kenyon & Sons Ltd [2014] All ER (D) 56 (Aug)

The issue in this case was whether a claimant could bring a claim for mesothelioma against some of his former employers despite having settled an earlier claim which he had brought against other former employers for the risk of developing mesothelioma.

The claimant alleged that he had, during each of his periods of employment with each of the three defendants, been subjected to heavy exposure to asbestos dust and it was common ground that in 1998 he was diagnosed as suffering from asbestosis and pleural plaques. The claimant had previously brought an action against eight other employers that had settled in 2003. In that first action, the claimant had claimed damages for asbestosis and pleural plaques and damages for the risk of mesothelioma.

In these proceedings, the claimant claimed damages against the defendants for his contraction of pleural mesothelioma. The defendants contended that they would have joined in the 2003 settlement had they been sued at the time, and would therefore have had a complete defence to these proceedings, namely compromise. The defendants variously pleaded limitation defence, estoppel and abuse of process.

It was noted that mesothelioma is not a divisible injury – it may be caused by a single fibre.  Hence, if several employers expose a worker to asbestos, it cannot be proven which employer actually caused the condition.  It can only be shown that an employer has increased the risk of mesothelioma. As a result, the worker can recover in full from any employer who has increased his risk of developing mesothelioma (leaving the employers to apportion liability between themselves). In Fairchild v Glenhaven Funeral Services Ltd [2002] 3 ALL ER 305, the House of Lords held that there was a special rule of causation to be applied in cases of this kind in which it was necessary to prove that a defendant increased the risk of the development of mesothelioma in order to recover in full against that defendant for the consequences. 

In this case, the claimant had not originally claimed against three of his past employers because his solicitors did not know the correct name for one of them and were unable to identify the relevant insurers of the other two employers (now dissolved). However, after developing mesothelioma, he now sought to claim against those three employers. The Court had to consider whether the proceedings were an abuse of the process of the court; whether and to what extent the 2003 settlement with the other employers to include compensation for the risk of mesothelioma was relevant and whether the claimant was stopped from bringing the proceedings.  Further, whether the proceedings were statute barred.

Allowing the claim, the Court found:

  • It would be wrong to hold that the proceedings were an abuse of the process of the court. The defendants had not been parties to the first action. That was not decisive as a matter of law, but was a factor of considerable weight. There had been no evidence that the claimant had manipulated the process of the court. He had not deliberately secured a lump sum for the risk of mesothelioma deliberately omitting the defendants from those proceedings so that he could sue them later if the risk came to pass. The decision not to sue those defendants had honestly been made and had been made because in each case the claimant and his solicitors had been unable to discover an insurer liable to meet the claim against them. That had been a reasonable and not an abusive decision making process.
  • The first action was for damages for asbestosis, depression and the risk of the development of three further different conditions also caused by asbestos exposure. The employers had not been concurrent tortfeasors in relation to the asbestosis and depression, but might have been in relation to the risks. The settlement resolved all those claims against the original defendants. In settling the claim as he had done, the claimant had plainly intended to extinguish his rights in relation to future mesothelioma against all the employers whom he had decided were worth suing. The claimant elected to accept a sum for the risk of mesothelioma and in return decided not to seek an order permitting him to return to court in the event that mesothelioma actually developed. The settlement deliberately excluded any sum which would follow from the development of the condition.
  • It was established law that on a literal construction of s 33(1) of the 1980 Limitation Act, it was relevant to the exercise of the discretion that the defendant would suffer the financial prejudice of having to pay the damages if the arbitrary time limit were to be disapplied. Parliament could not have intended that financial prejudice, as such, should be taken into account. All the competing factors were evenly balanced. There were significant arguments in both directions. The principal consideration had to be the fact that the claimant had a substantial claim for a very serious injury. The claimant had suffered a grievous injury by reason of contracting mesothelioma. The medical evidence in respect of his condition was uncontroversial. Each tortfeasor who had exposed the claimant to asbestos dust and had thereby materially increased the risk of mesothelioma was liable for the injury. He had very good prospects of establishing that the defendants contributed to the causation of the risk of that condition, and were liable for it by reason of the principle in Fairchild.