Personal Injury Update

In the course of the last few weeks, the House of Lords has provided cheer to claimant personal injury practitioners on two occasions, and the High Court has made it clear that the threshold a claimant must pass in a personal injury case to obtain permission to serve out of the jurisdiction is a relatively low one. This, too, will no doubt have pleased claimant personal injury practitioners, given that damages awards in this country are traditionally far more generous than overseas.

EMPLOYER’S LIABILITY FOR SUICIDE

In Corr (Administratrix of the Estate of T Corr (deceased) v IBC Vehicles Ltd [2008] UKHL 13, [2008] All ER (D) 386 (Feb), the House of Lords upheld the Court of Appeal’s finding that an employer was liable under the Fatal Accidents Act 1976 (FAA 1976) for the suicide of an employee who suffered from severe depression, having been seriously injured in an accident at work. The facts were as follows. C, a psychologically- healthy man, was employed by D as an engineer. As a result of being struck on the head by a machine, he suffered physical disfigurement, post-traumatic stress syndrome and depression. He began proceedings against D for damages for the physical and psychological injuries he had suffered. Liability was admitted.

Before the conclusion of those proceedings, C committed suicide by jumping from the top of a multi-storey car park. His widow was substituted as claimant in the original proceedings and also brought a claim under FAA 1976 for dependency. It was agreed that the depressive illness from which C suffered was caused by the accident and that this drove him to take his own life. D disputed, however, that it was liable to pay damages under FAA 1976, arguing that the financial losses attributable to C’s suicide were too remote. On behalf of D it was submitted that C’s suicide:

fell outside the duty of care owed to him by D;

was not an act which was reasonably foreseeable and therefore not one for which D should be held liable;

broke the chain of causation and constituted a novus actus interveniens;

was an unreasonable act which broke the chain of causation;

was the voluntary act of C and so precluded by the principle of volenti not fit injuria; and

amounted to contributory negligence.

Each of these arguments was rejected by the House of Lords. In relation to the scope of duty issue, Lord Bingham, who gave the leading judgment, noted that D owed C a duty to take reasonable care to avoid causing him personal injury, which included both physical and psychological injury. D’s breach caused C injury of both kinds and at the time of his death C acted in a way in which he would not have done, but for the injury from which D’s breach caused him to suffer. That being so, C’s conduct in taking his own life did not fall outside the scope of the duty which D owed to him.

Forseeability

In relation to the foreseeability issue, Lord Bingham found that “possibly very severe” depression was a foreseeable consequence of D’s breach and it was not incumbent on C’s widow to show that suicide was itself foreseeable. Lord Bingham applied the principle enunciated in Hughes v Lord Advocate [1963] AC 837, [1963] 1 All ER 705 to the effect that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take. He “could readily accept that some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what is reasonably foreseeable”, but held that “suicide cannot be so regarded”. The novus actus argument was dismissed on the basis that C’s suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. Rather, it “was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being…a consequence of his employer’s tort”. It was held that it was “in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought to be unfair to the victim not to do so”. The unreasonable act argument was dismissed for similar reasons, as was the volenti argument. The court found that C’s conduct was induced by the breach of duty: suicide “was not something to which C consented voluntarily and with his eyes open, but an act performed because of the psychological condition which the employer’s breach of duty had induced”.

The contributory negligence argument was not addressed by the trial judge, and was argued by both parties with “extreme brevity” in the House of Lords. For this reason, the majority of their lordships were unwilling to make significant findings on it or to contemplate deductions from the damages on that score.

However, Lord Mance (at paras 51–52) left the door wide open for a defendant to argue contributory negligence in a similar case in the future:

“The existence of a causal link between an accident and depression leading to suicide, sufficient to make a defendant who is responsible for the accident liable for the suicide as one of its consequences, does not necessarily mean that such liability should involve a 100% recovery. The concept of impairment is itself one which could usefully be further explored in expert evidence in another case…It may be right…to identify differing degrees of impairment and responsibility. It may also be relevant if other factors were operating on the claimant, independently of the accident and consequent depression—for example, impending exposure of lack of probity, financial ruin or matrimonial breakdown. The different strands of policy in this area, and the balancing of different goals which is necessary, may therefore make it appropriate not only to hold liable a defendant who causes an accident which leads to depression and suicide, but also to attribute an element of responsibility, small though it may be, to a person who commits suicide, so recognising the element of choice which may be present even in the case of someone suffering from an impairment due to an accident.”

Lord Scott went even further in this regard, and made a finding of contributory negligence. He noted that C had remained an autonomous individual with the power of choice and suggested that, had C injured another person in the course of committing suicide, it was likely that “no court, faced with a claim by the injured person for damages, would have found any difficulty in attributing fault to his action”. That said, Lord Scott considered that C’s responsibility for his death was only 20%, given that the suicidal tendencies which led him to take his own life were one of the psychiatric products of D’s negligence.

LIMITATION IN SEXUAL ABUSE CASES

The House of Lords, in the conjoined appeals of A v Hoare, C v Middlesbrough Council, X v London Borough of Wandsworth, H v Suffolk County Council and Young v Catholic Care (Diocese of Leeds) [2008] UKHL 6, [2008] All ER (D) 251 (Jan) radically departed from the established approach to limitation in sexual abuse cases.

The appellants, all of whom alleged that they had been victims of sexual abuse during their childhood, appealed against decisions striking out their claims on the basis that they were statute- barred. In each case, the respective judges had followed Stubbings v Webb [1993] AC 498, [1993] 1 All ER 322 in which the House of Lords unanimously decided that s 11 of the Limitation Act 1980 (LA 1980) does not apply to a case of deliberate assault, including acts of indecent assault. This being the case, time could not be extended to reflect the “date of knowledge” (as defined in s 14) of the individual claimant, and the courts did not have the discretion under s 33 to disapply the limitation period.

Lord Hoffmann, who gave the leading judgment, considered the development of the law since Stubbings. He noted that for a long period after it was decided, it did not give rise in practice to much difficulty. This was because it was generally believed, on the authority of cases such as Trotman v Council [1999] LGR 584, that an employer could not be vicariously liable for sexual assaults committed by his employee on the basis that the assaults were inherently outside the scope of his employment. Only the abuser himself could be liable, and (for financial reasons) they were seldom worth suing.

Stubbings did, however, give rise to anomalies on occasion. For example, in S v W (Child Abuse: Damages) [1995] 1 FLR 862, the claimant sued her father and mother for sexual abuse by her father some 10 years after the last act of abuse. The claimant’s claim against her father was for intentional assault and was therefore statute-barred and struck out. The claimant’s claim against her mother was for negligent failure to protect her against abuse from the father. Because this fell under LA 1980, s 11 and the courts could extend time under s 33, the claimant’s claim against her mother was allowed to proceed.

Lister v Hesley Hall Ltd

The post-Stubbings situation was fundamentally changed when the House of Lords decided in Lister v Hesley Hall Ltd [2002] 1 AC 215, [2001] 2 All ER 769 that sexual abuse was not necessarily outside the scope of employment. It depended on whether or not there was a sufficiently close connection between the work which the employee had been employed to do and the acts of abuse. (In that case, a company which owned and operated a school boarding house was held liable for sexual abuse of pupils by a man employed as warden.) This resulted in a deluge of claims against the operators of schools, detention centres and similar institutions for sexual abuse by employees, and these claims brought to the forefront the anomalies created by Stubbings.

The anomalies arose because, owing to the fact that claims for intentional assault were likely to be statute-barred (pursuant to Stubbings), claimants were forced to frame their claims in relation to abuse in terms which could bring them within the scope of s 11. Thus, in addition to having to prove that the sexual abuse had occurred, claimants also had to prove that this was the result of “systemic negligence” on the part of the abuser’s employer or the negligence of some other person for whom the employer was responsible.

Lord Hoffmann agreed with Lord Justice Auld in KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441, [2003] All ER (D) 101 (Jun) at para 100 to the effect that the need to frame claims of sexual abuse for which the employer was responsible in such terms was resulting in “arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit” and he accordingly found that it would be right to depart from Stubbings. Their other lordships agreed that “breach of duty” must be construed broadly enough to include trespass to the person. This was sufficient to dispose of all but one of the appeals because it meant that the claims then came within s 11 and the individual cases were remitted for judges to decide whether to exercise discretion under s 33.

Young v Catholic Care

The final appeal, Young v Catholic Care, raised the important point of the meaning of “significant” in LA 1980, s 14(1), which provides that the “date of knowledge” is the date on which the claimant first had knowledge of various facts, including “that the injury was significant”. Section 14(2) provides that an injury is significant “if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment”. The question which arose was whether or not the definition of “significant” allowed any (and if so, how much) account to be taken of personal characteristics of the claimant, either pre-existing or consequent upon the injury which he has suffered. It was argued on behalf of the appellants that account ought to be taken of a claimant’s level of intelligence and the fact that he or she may be “in denial” about the abuse. Although Lord Hoffmann (at para 34), dismissed this argument as irrelevant to s 14, this does not mean that such arguments are otiose. On the contrary. The court may take into account a claimant’s psychological state in consequence of the injury when it is considering s 33. This specifically provides that one of the matters to be taken into account in the exercise of discretion is “the reasons for the delay on the part of the plaintiff ”. This requires a judge to give due weight to the evidence and, according to Lord Hoffmann, whether the claimant “was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered”.

JURISDICTION

In Shane Anthony Cooley (By His Father and Litigation Friend Peter Anthony Cooley) v Ramsey [2008] EWHC 129 (QB), the High Court was asked to consider whether it had jurisdiction to grant permission for proceedings to be served in Australia in a case where a British citizen had been left grossly handicapped as a result of a road traffic accident which had occurred in Australia; and whether, if so, it should exercise its discretion in the claimant’s favour. After spending considerable time in hospital after the accident in (where he had been on a working visa), the claimant was brought back to the to be cared for by his parents. The case involved a consideration of the court’s discretion under CPR Pt 6.

Because the accident occurred outside the jurisdiction, and the defendant was domiciled outside the jurisdiction, the only basis upon which the claimant could argue for service out of the jurisdiction was that the damage was sustained within the jurisdiction (CPR 6.20(8)(a)). In this regard, the claimant relied upon the case of Booth v Phillips (2004) 1 WLR 3292, [2004] All ER (D) 191 (Jun) as authority for the proposition that economic loss, in the form of a loss of a source of income, counted as damage sustained within the jurisdiction under CPR 6.20(8)(a).

In Booth, the claimant’s husband, a British citizen, had died while working on a vessel in . The claimant brought proceedings in her own right for loss of dependency under FAA 1976, and as executrix of her husband’s estate for the cost of his funeral expenses under the Law Reform (Miscellaneous Provisions) Act 1934. The court found that it had the power to permit service out of the jurisdiction on the basis that the claimant had sustained damage within the jurisdiction in her own right, namely the loss of her dependency on her husband, and in her right as executrix of his estate, namely the expenses of his funeral which had taken placed in the UK.

Flawed reasoning

In Cooley, the defendant sought to persuade the court that the reasoning in Booth was flawed because the defendant’s submissions in relation to FAA 1976 (which were rejected) had proceeded on a mistaken footing. (It was suggested that the defendant had mistakenly argued in relation to FAA 1976 that the death of the claimant’s husband in Egypt was the relevant “damage”, whereas although the death of a deceased is a necessary condition for a dependency claim, it is not damage within the meaning of FAA 1976.) The defendant also submitted that Booth was not consistent with the cases under Art 5(3) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and that the judge had incorrectly applied considerations applicable to different jurisdictions within a single state.

Each of these submissions was rejected in Cooley, with the court finding that the judge in Booth was not presented with submissions on a mistaken basis; he had had regard to the Convention; and had considered the relevant authorities. The court therefore found that because the claimant was suffering a continuing financial loss within this country, it could exercise its discretion to allow service out of the jurisdiction.

In relation to the key issue between the parties, which was whether or not the claimant’s damages should be assessed under English law or the law of (the former providing the more generous regime to the claimant), the court preferred the claimant’s submissions. The court specifically noted that it would not grant permission merely because a refusal to do so might deprive the claimant of a higher award of damages, however it was persuaded that the interests of justice required that the claim be prepared with the benefit of a close liaison between the claimant’s legal representatives, his litigation friend and his witnesses.

The court was also persuaded by the following considerations:

• There was no issue on liability, only damage. Therefore, this was not a case in which a court in either jurisdiction would have to apply a law other than its own: the quantification of damage falls to be determined by the law of the court, which means English law if the case proceeds in .

• The claimant’s return to the was a natural consequence of the injuries he sustained: he could not work after the accident so could not remain in on a working visa and he relied upon his UK-based family to provide him with care.

• The issue of quantum would require evidence from numerous factual and expert witnesses, all of whom were based in the .

• In assessing compensation, the court was required to have some knowledge of the environment in which a victim was to live and an English court would be better placed in that regard than an Australian court.

Cooley emphasises the difficulties a defendant faces in resisting an application for permission to serve out of the jurisdiction in a personal injury case where the claimant is resident in this country and is suffering a continuing loss.