Mr Ghaith is a client who suffered an accident at work, whilst working for Indesit UK Ltd.  Before coming to us, he had gone to a national firm of solicitors after seeing their adverts on TV.  Like virtually every law firm out there, they took it on under a ‘No Win No Fee’ basis and they took the matter to the County Court, but LOST.

Naturally, Mr Ghaith was unhappy.  Not only had he suffered an injury which he felt was not his fault, but he had gone to a major law firm who advertised on TV thinking that he would get better service.  Unfortunately though, like many others who fell into the same trap, he found out that just because they were a big law firm with flashy TV adverts, the end result was not so great.

You see, many of these huge law firms have similarly huge marketing costs.  They deal with lots of claims but they lack the personal touch, level of experience and dedication that a smaller, more niche firm can provide.

Thankfully for Mr Ghaith, he wasn’t prepared to let the matter drop.  We say ‘good for him’, we strongly believe in standing up for your rights if you’ve suffered an injustice.

So Mr Ghaith got in touch with us after finding our specialist personal injury website and we invited him in to see us, completely free of charge.  He asked us to represent him and gave his consent for us to obtain his file from his former solicitors.  We did this and reviewed the file and also sought an opinion from the Barrister who represented him in the County Court.  We believed that an appeal against the decision could be successful.

Before we could actually appeal this case, we have to ask for permission from the court to appeal it.  We instructed a Barrister of our own and applied to appeal to the Court of Appeal.   Permission was granted and it was also suggested by the Judge that perhaps the case should be settled using mediation, which is an alternate way of settling disputes outside of the court.  We were happy to do so and put this proposition to the other side, but they declined.

So the case went before 3 Lord Justices in the Court of Appeal on May 3^rd 2012.  All 3 Lord Justices came to the same conclusion, which was that the County Court had wrongly dismissed Mr Ghaith’s claim.  They found that Indesit were wholly responsible for his accident at work and so will have to pay his damages in full.

The moral of the story is, don’t give up!  If you’re injured as a result of an accident that was not your fault and you’ve either been abandoned by a firm of solicitors, or they have lost your case, then as Mr Ghaith found out, we may be able to turn it around for you and get you the compensation that you deserve.

So call us today for free, for a no obligation chat, on 0800 3899 136.

Abdul Hafezi is the owner of Hafezis Solicitors and Lawclaim.net, a law firm who specialise in difficult and challenging cases.  He often picks up where others have left off.

Neutral Citation Number: [2012] EWCA Civ 642

Case No: B3/2011/2127

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROMCENTRAL LONDONCIVIL JUSTICE CENTRE

HIS HONOUR JUDGE COWELL

Royal Courts of Justice

Strand, London, WC2A 2LL 

Date: 17/05/2012

Before :

THE RIGHT HONOURABLE LORD JUSTICE WARD

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
and

THE RIGHT HONOURABLE LORD JUSTICE PATTEN

- – - – - – - – - – - – - – - – - – - – -

Between :

 Mr Muhammed Haque (instructed by Hafezis) for the Appellant

Mr Andrew Peebles (instructed by Plexus Solicitors) for the Respondent 

Hearing dates: 8^th May 2012

- – - – - – - – - – - – - – - – - – - – -

Approved Judgment

Lord Justice Longmore:

Introduction

1. Mr Ali Ghaith is an employee of Indesit Company UK Ltd (“Indesit”), the well-known suppliers of white goods such as washing machines, refrigerators and dishwashers.  He was one of a number of field service engineers employed to visit homes to repair and maintain white goods previously sold to customers and he was provided with a van full of machine parts and he would drive that van around his designated area which was near Peterborough.  Once a year Indesit arranged a stock taking of the equipment in his van and one such stock take occurred on 2^nd March 2007.  Mr Ghaith’s supervisor, Mr Mark Leversedge, arrived on that day and they did the stock take together.  The method used was that everything was taken out of the van, scanned and then noted on a computer record kept by Mr Leversedge on his hand-held computer.  Large items, such as washing machine drums had to be lifted out and placed on the ground or on a trolley for examination; smaller items were lifted out and put in what has been called a “tote box” and then placed on the trolley.  The majority (70%) of the lifting and moving was done by Mr Ghaith, while Mr Leversedge mainly occupied himself by doing the necessary scanning and recording of the relevant items.
2. This operation took most of the day, beginning at around 9.30 with 4 short breaks.  All of a sudden at about 4.00 or 4.30 Mr Ghaith felt a severe pain in his back and he made a noise or gasp or something of a cry.  He was stuck in a position holding a box Mr Leversedge took the box from him and put it on the trolley.  The judge could only make limited findings about how the injury occurred.  He said (para 20):-

“My finding is that the injury must have occurred when the claimant was lifting something, not necessarily a heavy item but probably lifting awkwardly, whether the item was heavy or not.  It probably was when he was moving a tote box, whether it was a small one or a large one, I don’t know (it may well have been a small one), that is, from the floor to the trolley with some things in it.  Again it is impossible to know what weight it was, the weight may not have been substantial.  That I think is as far as I can take it in terms of findings of fact.  I would go on to say the very fact that the claimant had been working for some hours probably did not itself cause the injury, though he thinks it did.  But it may account for that moment of inattention giving rise to the awkward movement.”

1. Mr Ghaith was able to continue working to finish the stock take but he was in some considerable pain.  He was due to go on holiday toEgyptthe next day and was able to do so.  But when he returned he was unable to go back to work for many weeks.  He has happily now recovered so far as possible.  In fact he already had a somewhat weak back, although he had not previously revealed that fact to Indesit, when he began his employment.  He has now sued Indesit for personal injury alleging a breach or breaches of the Manual Handling Operations Regulations 1992 (“the Regulations”).  It is agreed that the injury Mr Ghaith sustained has accelerated the worsening of his back condition by about 2 years and that liability (if any) will not be more than £60,000.
2. Regulation 4 sets out the duties of the employer in the following way:-

“(1) Each employer shall –

a)                  so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

b)                 where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured –

i)                    make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule;

ii)                  take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable; and

iii)                 take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on –

(aa)            the weight of each load ….”

1. Stock taking is (as the judge held (para 32)) an inevitable part of the job of any employee who is entrusted with a van full of spare parts.  If all the items are to be taken out of the van, there is (almost) inevitably a risk of injury in the course of lifting and moving them.  Indesit were therefore as the judge held (para 35) under the obligation to make a suitable and sufficient assessment of the manual handling operations to be undertaken.  Indesit claimed (and the judge held (para 41)) that they had done this by issuing a repair and maintenance risk assessment in August 2006 or a manual handling risk assessment in December 2006, which related to the loading and handling of tote boxes in loading and despatch areas.  The first assessment related to the work done in people’s homes.  The second assessment noted the risk that tote boxes may be filled with too many heavy items and that the boxes are themselves stacked 4 high on pallets.  There is an instruction that no box should exceed 25 kilos in weight and that each box should have a warning label to advise the handler to check the weight of the box before attempting to lift it.
2. A new risk assessment was made in May 2011.  This did single out stock taking as a separate activity and recommended (1) that heavy weights should be left in the van and scanned there and (2) that lifting and moving of items out of the van should be shared between the service engineer and supervisor and scanning should only take place after that removal.  It also records that the stock take was a process which took 2 hours to complete, “although there are no time constraints to this activity”.

The Judgment

1. Having made his findings of fact in relation to how the accident occurred, the judge accepted (para 33) that the risk of injury during stock taking had to be assessed.  He then considered Mr Ghaith’s argument that the assessment which had been done took no account of the risk of injury incurred from repetition of the lifting movements throughout the process.  This part of the judgment echoes the rival arguments of the parties about how the accident occurred; Mr Ghaith said the back injury happened because he had been repeating the same sort of movement for several hours which was too long, while Indesit argued that the injury occurred when Mr Ghaith was lifting two tote boxes at once when he should only have been handling one such box at a time.  The judge rejected Indesit’s versions of events and, although there is a respondent’s notice which seeks to resurrect that version (if the judge’s findings as to injury are set aside) that would be impossible for this court to do, not having heard the evidence.  The judge did not accept Mr Ghaith’s account either, although he did say (as already quoted) that the length of time over which he had been doing the handling required by the stock taking may have accounted “for that moment of inattention giving rise to the awkward movement”.  The judge was obviously doing the best he could on the evidence and I would not be minded to set aside his findings on how the injury occurred.  One is just left, therefore, with the finding that, because Mr Ghaith had been handling and lifting for a long time, a moment’s inattention caused him to lift or move a tote box awkwardly, causing an injury to a back which was already somewhat vulnerable.
2. Having held that an assessment was necessary, the judge then held (para 41) that the December 2006 assessment was suitable and sufficient within Regulation 4(1)(b)(i).  Mr Peebles for Indesit says that Mr Kostyrka, Indesit’s Health and Safety Officer, actually relied on the August 2006 assessment for this purpose but no doubt Indesit is entitled to rely on either or both of the assessments.  That, as the judge appreciated (para 37), was not the end of the matter because, even if the assessment was sufficient, it was necessary to consider whether Indesit had taken appropriate steps to reduce the injury from manual handling operations to the lowest level reasonably practicable pursuant to Regulations 4(1)(b)(ii).  As the judge also appreciated (para 33), even if he had held the assessment to be defective, that would not necessarily be the end of the matter since the inadequacy of a risk assessment could only ever be an indirect cause of an injury.
3. So the judge (para 45) considered whether Indesit had taken steps to reduce any injury to the lowest level reasonably practicable and he then considered  Mr Ghaith’s contentions (1) that he should have been given more training than he had been, (2) that the risk could have been reduced if the lifting and moving had been shared equally with Mr Leversedge and (3) that the stock taking should have been conducted over two days.  He decided that none of those steps would have made any difference and concluded simply (para 46):-

“The claimant had been trained, he knew how to lift, and it seems to me there is nothing more that could have been done on the part of the defendant.  So I am not satisfied that it can be said that the injury which the claimant suffered was caused by a breach of any particular provision in Regulation 4.  I think that is the end of my judgment.”

Submissions

1. Mr Muhammed Haque for Mr Ghaith submitted:-

i)                    that it was for the employer to demonstrate that the risk of injury was at the lowest level reasonably practicable, not for the employee to suggest things which the employer should have done but did not do;

ii)                   that the judge failed to recognise that the burden of proof was on Indesit to show that they had reduced the risk of injury to the lowest level reasonably practicable;

iii)                 that, in practice, the burden is almost impossible to discharge and had not been discharged in this case;

iv)                 that, in addition to the matters which the judge considered, the stock taking could and should have been conducted over a shorter period (e.g. 2-3 hours) or, if longer, with appropriate breaks and/or the heavier items could and should have been checked in the van;

v)                  so far as relevant, that neither the August nor the December 2006 assessments were suitable or sufficient.

1. Mr Peebles submitted:-

i)                    that it was relevant to decide whether the 2006 assessments were suitable and sufficient and the judge was correct to hold that they were;

ii)                   that such assessments rightly decided that any relevant risk of injury could be alleviated by training (which had been provided) and Indesit were, therefore, in a strong position to defend itself under Regulation 4(1)(b)(ii);

iii)                 that, in practice, there is an evidential burden on a claimant to suggest steps which could relevantly have been taken to reduce the risk of injury;

iv)                 no steps had been suggested which would, in fact, have made any difference;

v)                  therefore the obligations of the 1992 Regulations had been complied with.

The law in relation to the Regulations

1. This is not virgin territory.  In Egan v Central Manchester NHS Trust [2009] ICR 585 a nurse used a mobile hoist to transport a patient into a bath.  When she was manoeuvring the forks of the hoist underneath the bath, the hoist snagged on a plinth under the bath and caused the nurse to suffer a jerking injury to her back.  No risk assessment in relation to mobile hoists had been carried out but the judge held that the accident would have occurred even if there had been an adequate and sufficient risk assessment.  This court held the requirement in Regulation 4(1)(b)(ii) was separate from and additional to the requirement to carry out a risk assessment in Regulation 4(1)(b)(i) (although they were related requirements).  It also held that the burden of proof was on the employer to prove that it had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.  Smith LJ (with whom Sedley and Keene LJJ agreed) said:-

“20. It is clear from the judgment that the judge did not give separate consideration to regulation 4(1)(b)(ii).  In my view, he should have done because the requirements of that regulation are separate from the additional to the requirement to carry out a risk assessment.  Of course, the two are related, in that, a risk assessment will show the employer what steps it ought to take in order to reduce the risk of injury to the lowest level reasonably practicable.  Also, if an employer has carried out a careful and thorough risk assessment and has taken all the steps which appeared from that assessment to be appropriate to reduce the risks involved to the lowest level reasonably practicable, the employer would be in a strong position to defend itself under regulation 4(1)(b)(ii).

21. However, where, as here, no risk assessment has been carried out, the judge ought to focus on the regulation which imposes a duty to take positive action to reduce risk, regulation 4(1)(b)(ii).  The judge would approach that regulation on the basis that, once it has been shown that the manual handling operation carries some risk of injury, the burden of proof is on the employer to plead and prove that it has taken appropriate steps to reduce that risk to the lowest level of reasonably practicable.

22. Accordingly, in my view, it was not sufficient merely for the judge to examine whether a risk assessment would have made any difference.  Having said that, the questions Judge Tetlow asked himself did more or less cover the same ground as would have been covered by a separate consideration of regulation 4(1)(b)(ii).  It is true that the judge did not refer to the burden of proof and it appears to me, from his reference to the lack of particularity in the claimant’s pleading, that the judge may, in his own mind, have placed the burden on the claimant.  If he did, that would have been wrong.  I accept, of course, that, in practice, if a claimant wants to allege that there were steps which could and should have been taken and the employer says there were none, there will be an evidential burden on the claimant to advance those suggestions, even though the legal burden will remain on the employer.  So, although it was not in my view correct, the judge’s approach was capable of leading him to the right conclusion.  The question is whether or not his assessment of the various suggestions was right, bearing in mind that the claimant had established that the operation in question carried a risk of injury and it was therefore for the employer to show that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable.”

The Assessments

1. The difficulty with Indesit’s case under this head is that, on their face, neither the August nor the December 2006 assessments dealt with stock taking at all.  The August assessment described the workplace as

“Consumers’ Homes & Retailers”

and the Task/Activity as

“Repair and Maintenance of Domestic Appliances.”

It identified 13 hazards one of which was “Manual Handling” including “strains and sprains from lifting, pulling, pushing and general handling of appliances and component parts”.  It then described the control measure as, inter alia:-

“Manual handling training provided for all engineers.”

1. This is not an assessment of manual handling in relation to stock taking.  Manual handling of equipment at the homes or premises of consumers or retailers will be considerably less risky than at a stock taking because of the number of items which will be involved and the period over which manual handling of such items will take place.
2. The December assessment described the workplace as

“Loading & Despatch Areas”

and the Task/Activity as

“Loading and Handling of Tote Boxes.”

Although this was the assessment which the judge regarded as complying with regulation 4(1)(b)(i), it is in fact even less relevant to stock taking because, although the tote boxes no doubt will contain a number of items, it is unlikely that at a particular loading or despatch area anything like the full complement of items in a van will be loaded or despatched at any one time.  It is also clear that the hazards identified are confined to the manual handling of tote boxes rather than larger items of equipment.  Training was once again emphasised.

1. The relevant feature of stock taking is, of course, the risk of injury to the back (or other parts of the body) due to handling items of equipment over what may be a lengthy period.  That risk is just not addressed in the 2006 assessments.
2. The judge accepted the evidence of Mr Kostyrka, Indesit’s Health and Safety Officer, that there were no separate risks arising out of the repetition of the lifting operations and that risks arising from the way things are lifted could be dealt with by training.  It may well be that there were no separate risks arising from repetition as such.  Lifting and moving of items of different weight is, no doubt, not inherently repetitive in the sense that repetitive strain injury can, for example, be sustained by shorthand typists or computer operators.  But lifting and moving items of equipment of different weights over a long period is a different matter.  It is not the repetition but the length of time which the operation of stock taking takes which, to my mind, eluded the judge when he held that the 2006 assessments were suitable and sufficient.
3. It is noteworthy that by May 2011 Indesit had come to realise not merely that stock taking needed a separate assessment but that such assessment assumed or decided that the process should take no more than 2 hours.
4. For these reasons, I cannot agree that there was any suitable or sufficient assessment of the relevant risk by Indesit, who cannot therefore rely on Smith LJ’s dictum that, if such an assessment has been carried out and if the steps recommended by such assessment have been taken, the employer will be in a strong position to defend itself under regulation 4(1)(b)(ii).

Appropriate steps to reduce risk to lowest reasonable practicable level

1. Here there is no doubt that the onus is firmly on the employer to show that he took all reasonable practicable steps to reduce the risk.  It is a burden that is inevitably difficult to discharge.  Of course it is, as Smith LJ says, open to an employee to suggest ways in which the risk could have been reduced (and Mr Ghaith has done so) but there is no obligation on the employee to do so.
2. In paragraph 45 the judge considered various precautions which could have been taken but he omitted properly to consider what, to my mind, is the most obvious precaution namely that there should be regular breaks of reasonable length in the stock taking operation for the benefit of the employee and perhaps also the supervisor.  This is an obvious precaution and is reasonably practicable.
3. The judge did consider whether re-training should have been provided and whether the lifting should have been shared between Mr Ghaith and Mr Leversedge as a 50/50 basis rather than a 70/30 basis, but he understandably did not think much of those suggestions.  He then did consider a suggestion that the operation should have been conducted over two days but thought that would not have made any difference.  If by that he meant that having regular breaks meant that the operation would take 2 days and that no difference would have resulted I can only say that I disagree with him.  But I cannot see that it would be necessary for the operation to be spread over 2 days; if it were necessary then so be it.  The puzzle is that the May 2011 assessment thinks the operation should take only 2 hours.  This is, at any rate, strong support for the suggestion that there should be a break after 2 hours or so, if the operation is likely to last substantially longer than that.

Causation

1. This is not a separate hurdle for the employee, granted that the onus is on the employer to prove that he took appropriate steps to reduce the risk to the lowest level practicable.  If the employer does not do that, he will usually be liable without more ado.  It is possible to imagine a case when an employer could show that, even if he had taken all practicable steps to reduce the injury (though he had not done so), the injury would still have occurred e.g. if the injury was caused by a freak accident or some such thing; but the onus of so proving must be on the employer to show that that was the case, not on the employee to prove the negative proposition that, if all possible precautions had been taken, he would not have suffered any injury.

Contributory Negligence

1. On the basis that Indesit are to be liable, Mr Peebles argued, on the basis of the judge’s finding that a moment of inattention had given rise to the awkward movement which caused the injury, that Mr Ghaith had contributed to his loss and that there should be some deduction from the quantum of Indesit’s liability.  A momentary inattention will not usually justify any finding of contributory negligence, at any rate so long as the claimant is not in charge of a dangerous machine such as a motor car.  I would not make any deduction in this case.

Conclusion

1. I would therefore allow this appeal and remit the matter to the County Court for an assessment of quantum.

Postscript

1. It is a great pity that Indesit did not pursue the option of mediation rightly encouraged by Toulson LJ when he gave permission to appeal.  Mr Peebles informed us that it was not pursued because the costs had already exceeded the likely amount in issue.  This is an inadequate response to this Court’s encouragement of mediation since a full day in this Court will inevitably result in a substantial increase in costs.  Indesit’s reaction is all too frequent and the Court has, since April of this year, decided that any claim for less than £100,000 will be the subject of compulsory mediation.  It is devoutly to be hoped that such mediation will mean that these comparatively small claims will not have to be adjudicated by this Court so frequently in future.

Lord Justice Patten:

1. I agree.

Lord Justice Ward:

1. I also agree.
2. I fully endorse Longmore LJ’s postscript.  When this Court grants permission to appeal, it does so because there is a real prospect of success.  That does not mean that the appeal will succeed, but it does mean that the appeal is by no means hopeless.  That should tell both parties that there is still all to play for.  If they have any sense, they will therefore heed a recommendation to mediate because the costs of mediation are likely to be exceeded by the costs of the appeal by a significant margin.  It is not enough, as Mr Peebles suggested, that there had been some attempt in the correspondence between solicitors to settle the case.  The opening bids in a mediation are likely to remain as belligerently far apart as they were in correspondence but no-one should underestimate the new dynamic that an experienced mediator brings to the round table.  He has a canny knack of transforming the intractable into the possible.  That is the art of good mediation and that is why mediation should not be spurned when it is offered.

 I have deliberatly headed it “lucky claimant ” as in my opinion it was unfair and unjust to expect a driver to react in such short space of time. Moreover, part of court’s duties are to laid down gidelines which would evolve into habits and customs.

 A pedestrian stepping into controlled crossing when lights are aginst him, should be wholly responsible for the cause of the accidents. Its a dangerous precedent.

————————————————————————————————

SATNAM REHILL v RIDER HOLDINGS LTD (2012)[2012] EWCA Civ 628

 CA (Civ Div) (Ward LJ, Richards LJ, Patten LJ) 16/05/2012

A bus company was liable for personal injury sustained by a pedestrian who would not have been run over had the bus driver braked promptly. However, the pedestrian, in attempting to cross a pedestrian crossing when the lights were red, was 50 per cent contributorily negligent.

The appellant bus company (R) appealed against a decision that it was liable for personal injury sustained to a pedestrian (P) who had been run over by a bus. R also appealed against the apportionment for contributory negligence.

P had stepped off the nearside pavement onto a controlled pedestrian crossing and started to cross in front of the bus, even though the pedestrian crossing lights were red. P was hit by the bus and, by the time it stopped, its front wheel had gone over P, causing him serious crush injuries. The bus driver (X) maintained that the speed of the bus had been between 3 mph and 5 mph when the collision occurred.

 The recorder held that a reasonably careful bus driver would have noticed P as he left the kerb. He further found that the speed of bus was 4mph and that, if X had braked when he should have, the bus wheel would not have gone over P, even though it might have touched him. In coming to that conclusion the recorder had regard to CCTV footage from within the bus in order to calculate the time at which P stepped off the pavement and the time at which the collision occurred, and also made an allowance of 1.5 seconds for thinking time from the moment when P stepped off the pavement to the moment when he held that X should have applied the brakes.

 The recorder assessed P’s contributory negligence as one-third.

 On appeal R submitted that the recorder had erred in assessing X’s thinking time, the time of impact, and the speed of the bus. R further argued that contributory negligence should be assessed at 80 per cent.

HELD: (1) There was a clear breach of duty by X in failing to brake as quickly as he should have done. The issue was whether it had been shown that the wheel would not have gone over P if X had braked promptly. The recorder was entitled to find that X ought to have noticed P as he stepped off the pavement. Further, there was nothing wrong with allowing 1.5 seconds for thinking time from the moment that P stepped off the pavement to the moment when the driver should have applied the brakes.

The CCTV evidence suggested that the time at which P stepped off the pavement was earlier than the time applied by the judge in calculating when X should have braked, and was arguably generous to X. Further, the recorder’s determination of the time of impact, based on the CCTV footage of a passenger’s reaction in the bus, was a conclusion that he was entitled to reach on the balance of probabilities.

The recorder’s finding that the bus was travelling at 4mph was also reasonably open to him. There was no force in R’s concern as to the degree of precision with which the recorder calculated where the bus would have stopped had X applied the brakes when he should have since liability would have been established even with a longer stopping distance. Therefore, there was no proper basis for departing from the recorder’s findings that X’s negligence was causative of P’s injuries.

(2) P’s action in stepping into the road when the red light was showing and the bus was so close was the result of more than his misjudgement or simple failure to check. P was seriously blameworthy and his lack of care made the collision inevitable. However, the really serious injuries arose not from the initial impact but from the wheel of the bus going over P, which was caused by the lack of prompt braking. The instant case was not one where the pedestrian should be found more responsible than the driver for his injuries, Karen Janet Eagle (by Her Step-father and Litigation Friend, Ernest Edward Giles) v Garth Maynard Chambers considered. Overall, the appropriate apportionment for contributory negligence was 50 per cent .

Judgment accordingly

Mr D was a pedestrian crossing on a zebra crossing after looking both left and right with no immediate oncoming traffic. When Mr D was about 4-5 steps in to the zebra crossing a car did approach from his left which stopped as required to allow Mr D to continue to cross. However around the same time, out of the blue from the right hand side came a car which collided with his body, knocking him unconscious immediately. 

Despite the fact that vehicles are required to stop at a zebra crossing when a pedestrian has moved on to the crossing, liability was initially disputed suggesting that Mr D stepped out in front of the Defendant vehicle. After presenting our client’s argument to the other side once again on receipt of the police report and further negotiation liability was eventually admitted in May 2011. 

As a result of the accident Mr D suffered injuries to his neck, back, right leg, right knee and right calf, head, concussion and were extremely intrusive to his daily life. To assist with his recovery we arranged some physiotherapy when Mr D felt up to it, paid for by the Defendant’s insurers. Mr D also suffered psychological injuries which were addressed by a Psychiatrist and we subsequently arranged some Cognitive Behavioural Therapy to address his adjustment disorder which was also funded by the Defendant’s insurance company. 

Mr D also suffered financial losses including damage to his clothing, damaged mobile telephone, medication, care and assistance received from family and friends, telephone and postage expenses. We secured agreement from the Defendant insurers on all of these claims, in addition to his injury award.

In total Mr D received £7900.00 which was eventually agreed in April 2012 following an initial offer of £4200.00. Mr D was extremely happy with his final settlement and commented on our Feedback form that our service to him throughout his claim “was 100% good” and that he “was very satisfied with the service from Hafezis” and most importantly that he was “very happy with his settlement”.

Mr K looked us up online in September 2011, called us and we requested the papers from his previous solicitors and arranged a meeting with him immediately as Limitation (3 years after the accident date you must have finalised your claim or issued court proceedings, after which time if either of those have not happened you will be statute barred from making your claim) was approaching in early 2012.

Mr K was driving round a roundabout, intending to go straight through the roundabout, with a car in front and a car behind. Half way round the car in front changed his mind on the exit he wished to take, causing Mr K to break suddenly and fortunately avoid colliding with the vehicle in front, however the vehicle behind collided with the rear of the Claimant’s vehicle. The Defendant admitted liability at the scene and details were exchanged. A passer by referred Mr K to a local garage to get his car back on the road, which was in fact also a Claims Management Company who agreed to deal with his claim and who were subsequently investigated.

Mr K suffered aggravated neck pain, headaches, nightmares and flashbacks. After much negotiation a final settlement figure for his injuries were finally agreed at £3550.00 in April 2012, just before the Limitation date.

The lesson to be learned from this is that you should always come directly to a lawyer if you have been involved in any kind of accident and have suffered personal injury and / or financial loss.

It matters not where you are working , your empolyer has a legal duty to provide you with a safe system of work  to enable you to discharge your obligation as an employee.  In a noisy warehouse to auditorium the duty remains the same. If there are no adequate protection afforded to you and you suffer harm as in the case below, you have a right to be compensated for your damage.

If youare in that unfortunate position do give us a call. We aim to point you in the right direction

Abdul Hafezi.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The claimant, a 36-year-old man, received £8,000 for the permanent bilateral hearing loss and mild tinnitus sustained when he was exposed to excessive noise during the course of his employment between 2001 and 2009.

Occupational Disease; Employers’ Liability: Between 2001 and 2009 the claimant (C) was employed by the defendant company (D). He worked in the goods-in department of a warehouse. There were 17 loading bays, 6 of which were allocated to goods-in. C was exposed to excessive noise from wagons, dock levellers, auto-pickers and pump trucks within the warehouse, many of which operated simultaneously.

C was provided with hearing protection in the form of ear plugs during 2007, at which point it became compulsory to wear them. He always wore the ear plugs.

C sustained injury and brought an action against D alleging that it was negligent in exposing him to excessive levels of noise without adequate protection.

Liability admitted.

Injuries: C sustained bilateral hearing loss and mild tinnitus.

Effects: C’s sustained noise induced hearing loss of 11.4dB. He had difficulty communicating as he frequently missed what people were saying in conversation, particularly when there was background noise. He also had difficulty watching television without the volume being raised. C’s tinnitus was classed as mild.

Prognosis: C’s hearing loss was permanent.

Out of Court Settlement: £8,000 total damages

The case was settled on a global basis with no particular breakdown of damages. However, the following breakdown was estimated by the claimant’s solicitor:

Breakdown of General Damages: Pain, suffering and loss of amenity: £7,500; Allowance for hearing aids: £500.

Pannone LLP for the claimant. Plexus Law for the defendant

Hafezis Comments :–

This case illustrates clearly what is required at law from an employee to succeed. The employer had ignored the employee’s cry for help and recommendation from outside consultants to ease the work load of the employee.

They were also aware that the work load was causing the employee harm and yet negligently they ignored all that. In those situation they had no alternative, but to admit liability. Stress at work should and could be avoided. Unlike physical injury it can some time leave permanent legacy for the employee.

This case also illustrates the benefit of kite marks such as ISO 9001.

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The claimant, a 47-year-old woman, received £76,843, for the psychiatric injuries she suffered during the course of her employment between August 2009 and September or October 2009. She had a pre-existing vulnerability to developing a mood disorder and would remain vulnerable to developing further depressive episodes as a consequence of stress.

Employers’ Liability: Between August 2002 and September or October 2009 the claimant (C) was employed by the defendant (D) as an administrator. By 2006 C had a number of other roles which were pivotal to the effective day-to-day running of D’s business.

In March 2008, D asked C to implement its redundancy programme without sufficient support from her colleagues. The emotional burden on C was beyond the normal pressure of her job and she was often seen crying at work.

In July 2008, after the redundancies had been made, D employed an independent consultant to identify the role of each employee within the company. The consultant identified seven different roles that C was fulfilling and recommended to D that she needed support or her workload to be reduced to a manageable level.

In December 2008 D failed its ISO 9001 and 9002 quality assessment. The assessor advised D that C needed assistance in order to make the company compliant.

C sustained injury and brought an action against D alleging that it was negligent in failing to do something about C’s impeding illness when they had the chance to do so. She alleged that D was aware that she was struggling with the demands of her job and took no action when it was foreseeable that she would suffer psychiatric injury. C had clearly been upset at work and her multiple requests for assistance and support were constantly ignored by D. C alleged that as a result of D’s breach of duty of care, she developed a major depressive disorder.

Liability admitted.

Injuries: C suffered a major depressive disorder.

Effects: C was signed off work by her GP in December 2008 and diagnosed with a stress related illness and depression. Medical evidence from a consultant psychiatrist obtained confirmed that C was suffering from major depressive disorder (DSM IV 296.3). She received a period of counselling and cognitive behavioural therapy for her injuries.

C was unable to return to work for D. She decided to retrain to pursue another career because she felt that she would not be able to return to an administrative position with any degree of responsibility again for fear of consequences for her mental health. She did not return to work until she started a new job as a carer in November 2009.

As a result of C’s psychiatric injuries she had a persistent low mood, markedly diminished interest or pleasure in all activities, insomnia, loss of energy, feelings of worthlessness and diminished ability to concentrate.

Between 1982 and 1983 and in 1998, C had suffered from depression unrelated to her employment. The consultant psychiatrist’s evidence confirmed that C’s major depressive disorder had been caused by stress related to her work and the treatment that she had received from D. The evidence confirmed that she would not have suffered a major depressive episode at the time had it not been for the adverse nature of her working environment. C’s resignation was caused by her major depressive disorder, which was, in turn, caused by her adverse working environment.

Prognosis: C had a pre-existing vulnerability to developing a mood disorder and would remain vulnerable to developing further depressive episodes as a consequence of stress.

Out of court settlement: £76,843 total damages

Breakdown of General Damages: Pain, suffering and loss of amenity: £11,843.

Withy King Solicitors for the claimant. Royal and Sun Alliance for the defendant.

Sen Cts Costs Office (Mackay J, Senior Costs Judge Hurst, Colin Jaque) 03/04/2012 

A costs officer had acted perfectly legitimately in assessing the costs of the successful claimant in a case involving a low velocity rear end shunt, even though the costs far exceeded the damages accepted under a Part 36 offer, and despite the losing party indicating at the time of making the Part 36 offer that it was only prepared to pay predictive costs. There was no reason for predictive costs to operate as a cap on what was properly recoverable under a CPR Pt 44 assessment.

The defendant motor insurers (S) appealed against a costs award in favour of the claimant (L).

L had suffered a rear-end shunt on September 4, 2009, and S were the insurers of the vehicle which had run into her. One month after the accident, L notified S that she would be making a claim for whiplash injuries. S said that it was making enquiries, but would reply to her within the pre-action protocol period, which it calculated to expire on January 13, 2010. In November 2009, S accepted liability, but disputed causation on the basis of the collision having low velocity impact. It made a without prejudice offer of £500 in full and final settlement. Upon receipt of medical evidence in December, S offered £1300 for general damages, with no mention of special damages or costs. L did not reply, but on January 11, she sent a notice of her intention to issue proceedings. She submitted the proceedings to the court on the same day, and they were issued on January 13, the day on which the protocol period expired. Two weeks later she made a Part 36 offer of some £1800. On February 5, S indicated that it was treating the case as one of low velocity impact and offered to settle for £1560 plus L’s predictive costs and reasonably incurred disbursements. That offer was made into a Part 36 offer a week later. L accepted it.

By virtue of CPR r.44.12(1)(b), a costs order was deemed to have been made on the standard basis notwithstanding S’s assertion at the time of making the Part 36 offer that it would only pay predictive costs because of the premature issue of proceedings.

The costs officer was critical of the premature issue of proceedings, and disallowed post-issue costs “but not predictive costs”. He commented that S had not kept its promise to comply with the recognised timetable because it had indicated its intention to pursue the low velocity point argument. He considered the first offer derisory and treated the December offer as the first reasonable one. He assessed L’s costs at nearly £3,000.

S’s appeal against the costs award, which was conducted as a re-hearing, was dismissed, the costs judge finding that the proceedings had been “slightly premature” but that nothing would have changed if they had been issued a couple of days later.

The issues were

 (i) whether L had issued her claim prematurely and unreasonably;

(ii) if so, whether her costs ought to have been limited to what she would have recovered if the assessment had proceeded under CPR Pt 45.

HELD: (1) The test was whether, within an ambit of generous appreciation accorded to a specialist judge exercising the costs function, it could be said that the decision of the costs judge was wrong. His decision had not been wrong and the costs award could not be interfered with.

(2) (Obiter) There was no reason for predictive costs to operate as a cap on what was properly recoverable under a Pt 44 assessment. Costs judges had to have regard to what could or could not have been recovered under a different process on the basis that that was a highly material circumstance. The costs officer had done that. By his words “but not predictive costs” he had declined an invitation to conduct the assessment in accordance with Pt 45, and had acted entirely legitimately.

Appeal dismissed

The Motor Insurers’ Bureau did not incur a relevant liability for an injury caused by an uninsured driver, as the accident did not occur as a result of use of a vehicle on a public road.

The claimant (C) brought a claim for damages for personal injury against the first defendant (P) and the second defendant, the Motor Insurance Bureau (MIB).

There had been a long-standing family feud between P, who C’s sister-in-law and P’s husband (B), C’s brother. The precise circumstances were in dispute, however on the day C was injured, he encountered P and B on a narrow lane. Their cars were parked on a gravelled entrance to a farm, and a fight ensued. C and his brother-in-law (D) arrived on the scene carrying a variety of weapons, and P and B arrived with their five young children in a 4×4 jeep. At some point, P drove the vehicle onto an adjacent paddock and C was struck by the vehicle. Following that incident all the adult parties, apart from C, were prosecuted. D was convicted after pleading guilty to violent disorder, and P and B were acquitted of grievous bodily harm and affray, respectively, after a two-week trial. C suffered serious injuries and was paralysed.

 C brought a claim against P for negligence. P was not insured and C joined the MIB as the second defendant. The court was required to hear the issue of liability as a preliminary issue.

The MIB submitted that

 (1) P was acting in self-defence;

(2) C’s claim should be defeated by ex turpi causa as, C was holding a machete and had attacked the jeep with P and her children in it; smashed a car window; used cocaine shortly before the incident; arrived at the scene with a number of weapons; and with D who was later convicted of violent disorder. Those events were inextricably linked to what happened to C;

(3) Under clause 5 of the Uninsured Drivers Agreement, MIB was only liable to satisfy an unsatisfied judgment in respect of a “relevant liability” incurred by the uninsured driver. The Road Traffic Act 1988 Section 145(3)(a) required insurance in respect of liability which was “caused by, or arose out of, the use of the vehicle on a road or other public place”. MIB had no contingent liability in respect of it, as C suffered his injury in the paddock, which was not a road or a public place.

HELD:  (1) On the balance of probabilities C had been struck in the paddock and not the gravel area. C had used the machete to strike the jeep and smashed the window. C was hit by the front of the jeep when he was clearly there to be seen, and he was dragged into the paddock. The damage was caused by P. In the absence of evidence, self-defence could not be made out.

(2) The court could not accept MIB’s submissions on ex turpi causa. The cause of C’s injury was the jeep and not C’s involvement with the preceding fracas. C’s conduct was reprehensible, but on the facts, the defence was not made out, particularly with regard to the question of proportionality between C’s and D’s conduct, Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 A.C. 1339 considered and Clerk & Lindsell on Torts considered.

 (3) The gravel road was a public place and the paddock was private. The question was whether C’s injury took place in a public road. The position in the instant case was not dissimilar to Inman v Kenny [2001] EWCA Civ 35, [2001] P.I.Q.R. P18, Inman v Kenny applied. The accident did not occur as a result of use of a vehicle on a public road. The claim was not in respect of relevant liability and the MIB was not required to meet it. (4) Judgment would be entered against P, but dismissed against the MIB.