The Dekagram: 13th January 2025

Articles

13/01/2025

The holidays are over, and the Dekagram is back! We hope that all our readers have enjoyed a well-earned rest and have returned refreshed and ready for another exciting year of litigating. And what better way to start things off than to attend the Deka Chambers conference on accidents and deaths abroad? Featuring presentations from former chief coroner Sir Peter Thornton KC, renowned plastic surgeon Fulvio Urso-Baiarda, our own Matthew Chapman KC, and other stars in the cross border firmament, the conference will take place on 13th February and, as well as forming the definitive guide to cross border claims, will mark an auspicious occasion calling for an evening of celebration amongst friends. To book your place and avoid disappointment, use this link: Conference: Accidents and Deaths Abroad. We hope to see you there; in the meantime, in this edition of the Dekagram we bring you assorted news from the last few weeks at the coalface.

Richards v Shrewsbury and Telford Hospitals NHS Trust [2024] EWHC 3384 (KB)

The Claimant made a clinical negligence claim in respect of injuries allegedly suffered during an operation conducted by a doctor (D) in 2018. The Defendant defended the claim but asserted that D had developed a condition which made it difficult for him to give oral evidence at trial. Letters from a consultant neurologist confirmed that D had ongoing intermittent seizure activity which was exacerbated by sleep disturbance in the context of stress, that he developed confusion and cognitive slowing after such episodes, and, when in that state, was unlikely to have full mental capacity and would struggle to give an accurate account or respond to questions in court. The consultant also said that there was real possibility that D did not have a consistent ability to recall the events of 2018. At trial, therefore, the Defendant proposed to rely on D’s witness statement rather than calling him to give oral evidence.

The Claimant applied for an order under CPR Part 33.4, which provides that where a party does not intend to call a witness to give oral evidence the court may permit the other side to call them to be cross-examined on the contents of their hearsay statement. Understandably the Claimant contended that D was the key factual witness and that specific aspects of his evidence, including the Claimant’s arm and chest positions during the operation, were particularly relevant. She said that D was the only person who was likely to be able to give evidence on the issue and that he had attempted to address it to a limited extent in his statement, in which he had referred to his standard practice; but that he had written a letter in which he had made a statement inconsistent with this. On the face of the evidence which would be put before the trial judge, there was a discrepancy which the Claimant wanted to investigate by cross-examining D notwithstanding the Defendant’s intention to rely on his hearsay evidence.

Steven Gasztowicz KC granted the Defendant’s late application to rely on hearsay evidence on the basis that it had only recently become aware of the deterioration in D’s condition which necessitated the application. The Defendant had behaved properly by coming to the court when it became aware of the need for the evidence to be received by way of hearsay statement; the default had not been serious in the context of the case, it had not been the defendant’s fault; and there was a good explanation for not having served the notice with the witness statement.

However, the judge also granted the Claimant’s application for D to be called to give evidence in person. D’s evidence was relevant to the claim; the question was whether he was capable of giving oral evidence having regard to his medical condition. Neither the consultant neurologist’s letters nor any other material before the court demonstrated that D was unable physically or mentally to give evidence. If that had been the position, the consultant would have clearly said so. Nothing in the letters suggested that it would be harmful to D to give evidence, although it was said that seizure activity was exacerbated by sleep disturbance in the context of stress. The court accepted that giving evidence could be stressful. The seizures were intermittent, and D suffered confusion and cognitive slowing afterwards, and while he was unlikely to have full mental capacity and would struggle to give answers when in that state, he would not be completely unable to do so. It had not been demonstrated that he would be unable to cope or that it would be impossible for him to answer questions. There was a real possibility that he would not have a consistent ability to recall events, but many witnesses were in that position. It was appropriate for D to be cross-examined and for special measures to be put in place to reduce his stress, such as appearing remotely and taking frequent breaks. If he suffered a seizure, a further application could be made to the trial judge. If he did not attend, the weight of his evidence might be diminished; he could attend, however, and therefore should do so.

This outcome reminds us all of the formalities to be complied with when seeking permission to rely on hearsay evidence; if a notice of intention to do so is not served with the witness statement in question, the starting point is that permission will not be given unless there is a good reason for this default. Where a difficulty subsequently comes to light, it is of the utmost importance that an application is made immediately, supported by evidence as to the nature and extent of the problem. Parties seeking to adduce hearsay evidence should always be aware however that it is open to the other side to apply under CPR Part 33.4 for an order that the witness should attend for cross examination, and that where the witness is compellable and able to give oral evidence this is likely to be granted where (s)he gives relevant evidence central to the issues in the case. Above all, all parties should bear in mind that pursuant to CPR PD1A it is possible for the court to make adjustments to the way in which it receives evidence so that vulnerable witnesses can be catered for to the best of the court’s ability. Parties should be prepared to consider creative solutions to their witnesses’ difficulties so that the court can do justice by considering all of the relevant evidence before making a decision.

Amadu-Abdullah v Commissioner of Police for the Metropolis [2024] EWHC 3162 (KB)

Readers may recall Andrew Ritchie KC from his time in practice at 9 Gough Chambers before it metastatised into Deka Chambers; as Ritchie J he has given a series of judgments in which he has considered and restated the law on various issues in one handy cut-out-and-keep guide. In Amadu-Abdullah he addressed the thorny and often inconsistently managed question of Smith v Manchester awards.

The Claimant was 14 years’ old when he was tasered by an overenthusiastic police officer, unlawfully as it turned out. He suffered facial injuries as a result. A month before the incident he had signed a two year contract to play professional football for Leyton Orient; in the course of it he developed left optic neuropathy with loss of peripheral vision, and as a result he was unable to pursue his career with the club, although he hoped to continue playing.

Ritchie J considered the Claimant’s claim for loss of earning capacity at paragraphs 56 to 62 of the judgment. He was hampered by the fact that neither side had obtained evidence from an employment expert and that the Claimant’s youth at the time of the incident meant that he had no proven track record of earning. He noted that the Claimant’s representatives’ use of figures found on the website glassdoor.co.uk was not the orthodox methodology and relied instead on the government’s ASHE figures referred to in Facts and Figures. He seems to have flirted with the idea of calculating the Claimant’s loss by reference to his residual earning capacity as a disabled person, but rejected this method on the basis that it had not been pleaded by the Claimant:

“59. I am bound to determine the claim on the pleadings. The claim is based on Smith v Manchester [1974] 17 KIR 1 (Smith) . Since the Odgen Tables 6th edition, Smith claims have been used to cover the adverse financial effects caused by a claimant’s disability restricting the range of jobs and work he can do, so causing (inter alia): (1) longer gaps which the Claimant may suffer when looking for work in future, and (2) the increased likelihood of being “thrown” out of work, or choosing to leave, earlier than he would have but for the injuries.

60. In this case, on the medical evidence, it is clear that the Claimant’s eye disability will adversely affect the range of jobs the Claimant can do and the actual work he can do in the remaining jobs which he can do. I consider that this will lead to longer job searches and so will lead to a financial loss each time he is looking for work. This is mainly because he wishes to work in a physical field, not in a desk job.

61. My next task is to assess the size of the award. As set out in Kemp at paragraphs 10-030 to 10-036.1, the Courts assess:

61.1  The risk that the Claimant will be out of work;

61.2  The scope and seriousness of the effect of the disability on his earning capacity, covering the range of jobs he will be unable to do and the range of activities he will be unable to perform or be restricted in performing whilst at work;

61.3  The length of time over which his working life will endure.

In my judgment the Claimant has provided the necessary evidence for a Smith claim. The medical evidence supports the claim. The Claimant’s and his mother’s evidence support the claim and, although there is no evidence from teachers or employment consultants, I can take judicial notice of the adverse effects of his eye disability on his employability in physical work roles. I also take notice that the Claimant’s educational qualifications and his love of football and sport make it unlikely that he would have sought or will seek a desk based job in the first 20 to 30 years of his working life.

62.  I consider that the guidance given in paras. 10-035.1 to 10-036.1 in Kemp is a helpful distillation of the range of award made by Courts in the past. I discern 3 categories for Smith awards. The lower category justifies awards up to 1 years net earnings and is exemplified by: Moeliker v Reyrole [1977] 1 WLR 137 ; Robson v Liverpool [1993] PIQR Q78 ; Hale v London Underground [1992] PIQR Q30 and Chatfield v Kohler, reported in Kemp at para. E1-013. Then there is the middle category for awards, between 1 and 2 years of net annual income, exemplified by Smith and Underwood v Forman [1996] reported in Kemp at I3-001 . The higher category leads to awards of 2-5 years, but I am unsure as to whether the old cases, which justified that category before, survived the Ogden 6th Edition changes. I make no decision on that here because I have heard no submissions on that category. In this case the Claimant seeks an award of 1 years gross earnings and I consider that because the Claimant has 50 working years ahead of him that level is reasonable, however my award will be net of tax and NI, because that is what all claimants receive in damages when the Multiplier/Multiplicand approach is used. In my judgment, he will initially be more affected by the disability than in later life, when he will have adapted to the work field and environment he has chosen, and the effects of the disability will be better managed. Thus, I award £32,000 gross which, net of tax and NI, results in an award of £26,560 (see Facts and Figures on combined tax and NI for employed persons).”

A useful reminder of the appropriate method of calculating loss of earning capacity. First, consideration should be given to making a conventional claim on a multiplier/multiplicand basis, given that this will inevitably give a much higher figure. Then, if no such claim is sustainable, a Smith claim may be made, but should be supported by the ASHE figures available here Employee earnings in the UK – Office for National Statistics, bearing in mind the categories of claim set out by Ritchie J. If making a claim for a higher category award a Claimant should be prepared to justify why this is appropriate given that a multiplier/multiplicand claim cannot be made (and it is probably only appropriate for such a claim to be made in the alternative to an orthodox claim for loss of earnings).

Prevention of Future Deaths Report: David Haw

Lastly, the Senior Coroner for Dorset, Rachael Griffin, has made a prevention of future deaths report to the Secretary of State for Transport and to the Chief Executive Officer of the Royal Yachting Association in a tragic case arising from the death of David Haw, who drowned after falling into the water from a ridged hull inflatable boat (RIB) which was being used as a support boat for another boat at Poole Regatta. The coroner has expressed concerns regarding the regulation of vessels classified as pleasure vessels under the Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998, which are used in a manner very similar to commercial vessels but without the same safety mitigations in place. The recipients of the report must respond by 14th February 2025.

Once again the report exposes a lacuna in the regulation of pleasure craft. Too often we have acted in civil claims arising from similar incidents, and the coroner’s findings of fact as to the circumstances of the death are tragically  familiar to us:

“At the point of the collision the RHIB was being helmed at excessive speed, approximately 30 knots, which is 3 times the speed limit for the waters, which was not a safe speed. The helm of the vessel did not hold appropriate qualifications to helm the boat at night and was under the influence of alcohol at the point of the collision. There was no pilotage plan for the journey, nor was there a safety briefing or offer to passengers to use lifejackets. There was no challenge by the helm to David about his position sitting in the bow of the deck. The helm used a navigation app on a phone which is not an approved method of navigation and would negatively impact on night vision. The helm failed to keep a proper look out.”

In this context the coroner’s concerns are perhaps understandable:

“(1)…I have concerns that pleasure vessels are being used in a manner, and in conditions, that would be very similar to commercial vessels without the same safety mitigation. For example, there is no requirement to have a safety briefing prior to a journey on a pleasure vessel, whereas there is on a commercial vessel, however the risks may be the same, which can include death.

(2) Further in relation to pleasure vessels, there is currently no legislation prohibiting the use of alcohol or drugs by those who are helming a vessel for private or pleasure use, whereas for those helming a commercial vessel, there is…

(3) Further, I have a concern that personal floatation devices, such as lifejackets or buoyance aids are not legally required to be carried on all vessels, nor is there any legal requirement to wear lifejackets…

(4) Finally, I have concerns about the use of support boats, often RHIBs, at sailing events or regattas, and particularly when they are used outside of the designated sailing time but in a way linked to the event, for example to transport people to and from the organised social events linked to the regattas, where often there is alcohol available.

I have concerns that there is a culture of using such support boats as a form of taxi particularly at the social events, albeit not for pecuniary gain. This means they could come under the definition of a pleasure vessel and as those helming these vessels may be in drink, they may not take necessary precautions and safety measures given the lack of regulations…”

It will be interesting to read the responses to these concerns. It is difficult to see how the stark difference in safety standards between commercial and pleasure craft can be justified in the context of this case and others, particularly the apparently accepted practice of piloting a RIB whilst under the influence of drugs or alcohol. We will of course keep our readers informed of developments.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

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Sarah Prager KC

Call 1997 | Silk 2023

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