Personal Injury / Clinical Negligence – Notable case updates


Lewin v Gray [2023] EWHC 112 (KB)

This case involved a builder who was contracted by the Defendant to work on a barn which had a fragile roof. The Claimant lost his balance, falling through the roof and suffering catastrophic injuries. The Claimant pleaded statutory breaches of duty pursuant not only to the Occupiers’ Liability Act 1957, but crucially to the Construction (Design and Management) Regulations 2015. The specific allegation was that the Defendant was negligent (as per the Construction Regulations), in failing to ensure that the Claimant had completed a ‘Construction Phase Plan’.

Regarding the 2015 Regulations, the Defendant relied on section 69 of the Enterprise and Regulatory Reform Act 2013. In response, the Claimant argued that notwithstanding this, the Regulations created mirrored duties in common law.

HHJ Robinson rejected the Claimant’s argument, holding that it would not be fair, just or reasonable to override the express provision in Section 69 by creating a common law duty.

Whilst this appears to dismiss similar attempts to get around Section 69 through the backdoor of negligence, it should be noted that the case is somewhat fact-sensitive, with the Judge partially deciding that Section 69 should not be overridden due to the Defendant’s relative lack of experience and resources. See James Bentley’s article here for a further analysis of the case, and of the law around Section 69.

Harrison v University Hospitals of Derby & Burton NHS Foundation Trust [2022] EWCA Civ 1660

The Defendant made a Part 36 offer to the Claimant. The offer was not accepted within the relevant period. Judgment was entered on behalf of the Claimant, but shortly afterwards, the Defendant applied successfully for evidence to be adduced at the upcoming quantum trial that was inconsistent with the Claimant’s account. Following this the Claimant indicated that she wished to accept the Part 36 offer out of time (permission being required where the relevant period has expired, and further deductible amounts have been paid to the Claimant).

The first instance Judge granted permission to accept the offer and gave a direction as to the final net sum payable to the Claimant. He also ordered that the Claimant pay the Defendant’s costs arising after the Part 36 expiry date, but that the Defendant “may not set off or enforce the costs order against the Claimant pursuant to CPR 44.14”.

On appeal, the Defendant sought to argue that the order (directing the final sum payable) constituted an “order awarding damages” (meaning that the Defendant could enforce the costs order in its favour). This was dismissed by the Court, which held that the granting of permission to accept an offer is not an order for damages, but instead a redirection of part of the offer to the DWP. There was a need to “elevate form over substance” when considering the rules, and policy considerations (as well as prior authorities) dictated that the Claimant should not lose her protection under the QOCS regime.

Whilst QOCS protection remains firm, the Court noted that the Civil Procedure Rule Committee is likely to change the wording of rule 44.14(1) (which they have now done). These changes have been widely reported, and are due to come into effect on the 6th April 2023.

Hassam v Rabot [2023] EWCA Civ 19

In a series of claims leap frogging to the Court of Appeal, clarification has been provided on determining damages for PSLA in “mixed injury” cases and the interpretation of sections 3(1) and (2) of the Civil Liability Act 2018.

By a majority of 2 to 1, the Court of Appeal held that where a Claimant concurrently suffers whiplash injuries and injuries outside the scope of the 2018 Act, damages for injuries outside of the Act are to be assessed using trite common law principles. Such injuries (including hip, knee, and wrist injuries) are not fixed by or subsumed within the whiplash tariffs.

The Court held that Parliament’s intention in the 2018 Act was to provide proportionate damages for whiplash injuries and disincentivise “minor, exaggerated, and fraudulent” claims. An intention to “effectively extinguish” common law compensation for non-whiplash injuries could not be established.

Davies LJ held that whilst overlap between injuries must be accounted for, the overall award for tariff and non-tariff injuries could not be less than the award a non-tariff injury alone would attract. Such an approach would precipitate unfairness and inconsistency. Whilst over 400,000 cases have been issued through the Official Injury Claim portal, only 20% have concluded. Although Sir Geoffrey Vos MR (dissenting) interpreted sections 3(1) and (2) widely to include non-whiplash injuries, no statutory amendment has been proposed by Parliament, and permission to appeal has been refused by the Court of Appeal.

AXX v Zajac [2022] EWHC 2463

The High Court has considered the application of Practice Direction 1A and the CPR’s amended Overriding Objective for the first time since the Civil Procedure (Amendment) Rules 2021. Master McCloud granted a split trial in the interests of allowing a vulnerable witness to give their best evidence.

The Claimant was involved in an RTA in 2016, in which he sustained a traumatic brain injury and now suffers from psychosis, paranoia, and delusion. The Defendant denied causation.
The obstacle in proceedings was that the Claimant refused to take his antipsychotic medication. As a result, he was evasive and obstinate during medical assessments. Thus, experts could only provide restricted prognoses, rendering the quantum evidence “very much less than the most helpful it could be”.

The Claimant requested a split trial on the basis that if the Claimant succeeded on causation, a subsequent interim payment could facilitate the appointment of a case manager. It was accepted that with further medical input, a case manager could encourage the Claimant to receive medication, thereby facilitating better engagement with, and clearer prognoses from the experts prior to the quantum trial. It was held that a split trial would therefore enable the Claimant to “place his evidence before the court”. Master McCloud was not persuaded that factors such as proportionality and “overlapping witnesses” justified a joint trial, given the positive impact a split trial could have.

Master McCloud’s thorough consideration of PD1A is encouraging. It is hoped that future judgments will mirror the Court’s attention to detail.

Related Practice Areas

Clinical Negligence
Personal Injury

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