Delict – Seán Crossan's Scots Law

Revolutionary Road?

Last weekend (more specifically Saturday 29 January 2022) saw a really significant overall of the UK’s Highway Code which means that pedestrians and cyclists will be given far greater protection.

I was originally going to entitle this Blog either Code of Silence or Code Unknown, purely on the grounds that the changes seem to have crept up without any real awareness on the part of the British public. The reason I say this is because I was listening to BBC Radio 2 during the week running up to the changes. Jeremy Vine, the host of the eponymous show, was discussing the impending reforms with a panel of interested parties. One of the guests, Leo Murray, from the climate charity Possible, basically remarked that the UK Government had been remiss in failing to publicise these important changes.

I have to admit that I had only become aware of these changes a few days previously when I happened to come across an article from a Scottish regional newspaper which had appeared on social media.

As a pedestrian, cyclist and motorist, I’m pretty glad that I did find out in time. I also have more than a passing interest in this area as someone who has been knocked off my bike twice in less than 18 months by motorists (who were both at fault). Drivers ,who don’t cycle or walk that much, often forget how vulnerable pedestrians and cyclists actually are.

The main outcome of the new rules is the creation of a hierarchy of road users where the most vulnerable individuals – pedestrians, followed by cyclists, and then horse riders will be given priority over motorists, buses and heavy goods vehicles.

This past week alone, I’ve had to make a conscious effort to slow down when turning my car left into junctions in order to give pedestrians priority. I also take greater care when I’m turning right into junctions or leaving roundabouts. I’m quite happy to do this because as an occasional pedestrian and, as a more regular cyclist, I understand that I will benefit from the changes to the Highway Code?

One of the features of the new Code – which I particularly support – is the right of cyclists to use the middle of the road in order to avoid potholes (and other debris), enjoy greater visibility and making it easier to turn right. There are also new rules about giving cyclists greater space when being overtaken by motorists.

Some driving commentators such as the former BBC presenter, Alan Douglas (speaking to Radio Clyde) , have expressed their misgivings about the new rules saying that they are great in theory, but less so in practice. We’ll just have to wait and see.

I do think, however, that this is a timely reminder to the (pure) motorist community ( i.e. those individuals absolutely wedded to the idea of the car as being the sole, legitimate form of road transport) that our highways are a shared space. I often enjoy debunking the old myth or chestnut when talking to (pure) motorists that cyclists do not pay vehicle excise duty. As a driver who also happens to be a cyclist, I do pay several hundred pounds a year in vehicle excise duty for the privilege of using the roads. As a matter of fact, a lot of motorists who drive electric cars and lower emissions vehicles are exempt from this form of taxation. In any case, the sum collected from vehicle excise is not used to pay for road building and maintenance. This comes from general taxation (see link to article below):

https://www.pressandjournal.co.uk/fp/pj-investigations/2477257/the-road-tax-debate-can-drivers-claim-to-own-the-roads/

When motorists use the term of abuse “bloody cyclists!”, they are actually falling into a false dichotomy or “them and us” mindset because many cyclists are in fact car drivers.

Heading towards stricter liability?

The new rules will certainly be the go to reference point in both criminal prosecutions for careless and dangerous driving (Sections 2 and 3 respectively of the Road Traffic Act 1988) and for civil claims in delict and tort involving personal injury and property damage.

Personally and professionally speaking, I’m more interested in the civil aspects of road accidents. In the second, more serious road accident that I was involved in, the driver was charged with careless driving (which was not contested) and probably received a fine and penalty points. I, on the other hand, was left with injuries – necessitating a lengthy course of physio – and a racing bike which had to be written off.

An out of court settlement with the driver’s insurance company eventually followed after my solicitors had raised the prospect of a civil claim. This outcome to the matter was much more satisfying for me than any action taken against the driver under the criminal law.

One area of controversy that surrounds the burden of proof in relation to delictual liability occurs in road traffic accidents involving pedal cyclists and motorists.

Currently, a cyclist who is injured in a road traffic accident must prove that the vehicle driver was at fault or to blame. Most European countries have reversed the burden of proof so that a motorist involved in a collision with a cyclist must prove that s/he was not to blame or at fault for the accident.

Only the United Kingdom, Cyprus, Malta, the Republic of Ireland and Romania operate a system whereby the cyclist must prove fault. This proposed reform, supported by many cycle organisations, has ignited passions and it remains to be seen whether it will find favour with British legislators.

Conclusion

Although the reforms to the Highway Code are certainly revolutionary in some respects, I would hesitate to say that we have arrived at a destination of strict liability in relation to road accidents. The changes do represent a new philosophy in road use whereby whoever you are you should always be thinking about those individuals who are more vulnerable than you.

A guide to the main changes brought in by the updated Highway Code can be viewed by clicking on the link below:

https://www.gov.uk/government/news/the-highway-code-8-changes-you-need-to-know-from-29-january-2022

Postscript

In April 2022, Neil Greig, Policy and Research Director at IAM Roadsmart, claimed that:

“An alarming number of motorists are driving on British roads without awareness of key changes which fundamentally shift the dynamics of shared use.

… This is a serious safety risk which could actually see the updated code causing more conflict on our roads rather than less.”

A survey carried out by Mr Greig’s organisation concluded that one in five drivers was not aware of the recent changes to the Highway Code. A large reason for this ignorance was the fact that the U.K. Government had failed to advertise adequately the changes to the Code. Apparently, a new information campaign to be carried out in the Spring will hopefully rectify this unfortunate situation.

A link to the IAM Roadsmart’s website can be found below:

https://www.iamroadsmart.com/media-policy/media-enquiries/news-details/2022/04/08/uncertainty-over-new-hierarchy-of-road-users-could-cause-more-conflict-on-our-busy-shared-streets

Copyright Seán J Crossan, 5 February & 9 April 2022

The death of the independent contractor defence? Not quite …

Today, the UK Supreme Court has decided, in a unanimous judgement, that Barclays Bank PLC is not liable for the wrongful and criminal actions of an independent contractor (a medical doctor) that it engaged over a number of decades – see Barclays Bank PLC v Various Claimants [2020] UKSC 13. This judgement overturns the Court of Appeal’s judgement of 2018 (see Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670).

The facts of the case

Barclays Bank hired a doctor, Gordon Bates, to carry out medical examinations of members of its staff and applicants for employment at the Bank. These examinations were carried out by Bates at his consulting room located at his private address. The doctor was accused of sexually assaulting 126 people during examinations carried out between 1968 and 1984. These incidents did not come to light until much later.

By this time, the doctor had died and there was no question of his professional indemnity insurance or his estate paying out compensation to his victims. Barclays Bank stated that the doctor was not an employee – he was an independent medical practitioner paid by the Bank to carry out a service as and when required.

Barclays Bank argued that on these grounds they should not be held liable for the doctor’s wrongful actions. In fact, the victims themselves did not claim that Bates was an employee of Barclays, but significantly they did argue that its relationship with the doctor was “akin to employment” and that the delictual act was sufficiently closely connected to the employment or quasi-employment. Bates was under the control of Barclays Bank; by using the services of Bates, the Bank had created the risk of the victims being exposed to his wrongful acts; The medical examinations were carried out on behalf of the Bank; and the Bank had the resources to compensate the victims who now had no practical means of obtaining damages from Bates.

The Court of Appeal

The case was first heard in the English High Court. The High Court decided that Barclays should be held liable for the doctor’s actions. They were benefiting from the service that he was providing and they had the financial resources to compensate the victims (this for organisations using independent contractors will be the really controversial and worrying part of the judgement).

Barclays appealed to the English Court of Appeal, but the decision of the High Court was upheld.

At paragraph 41 of the judgement, Lord Justice Irwin stated:

“The law of vicarious liability has been developed – has been “on the move” – in recent times, most notably in the five critical decisions of: E v English Province of Our Lady of Charity; the Catholic Child Welfare Society; Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets; and Armes v Nottinghamshire County Council.”

Significantly, Lord Justice Irwin went on to say (at paragraph 45):

“Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector.”

The UK Supreme Court

Baroness Hale, who gave the unanimous decision of the Court, noted that the doctrine of vicarious liability is “on the move” and “how far that move can take it.”

Baroness Hale summarised the position of Barclays Bank in the following terms:

‘As Lord Bridge of Harwich stated in D & F Estates Ltd v Church Comrs [1989] AC 177, 208 (echoing the words of Widgery LJ in Salsbury v Woodland [1970] 1 QB 324, 336), “It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work”. The Bank argues that, although recent decisions have expanded the categories of relationship which can give rise to vicarious liability beyond a contract of employment, they have not so expanded it as to destroy this trite proposition of law, which has been with us since at least the decision of Baron Parke in Quarman v Burnett (1840) 6 M & W 499, 151 ER 509.’

Her ladyship went on to set out the legal argument of the victims of Doctor Bates’ wrongful actions:

‘The claimants, on the other hand, argue that the recent Supreme Court cases of Christian Brothers, Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660, and Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355, have replaced that trite proposition with a more nuanced multi-factorial approach in which a range of incidents are considered in deciding whether it is “fair, just and reasonable” to impose vicarious liability upon this person for the torts of another person who is not his employee. That was the approach adopted both by the trial judge and the Court of Appeal in this case.’

In finding that Barclays Bank was not vicariously liable for Doctor Bates’ wrongful actions, Baroness Hale highlighted the following factors which had clearly influenced the Supreme Court:

Doctor Bates was never employed by Barclays
He was not paid a retainer by Barclays
He could refuse referrals from Barclays
He maintained his own medical practice and medical insurance (though whether his policy of indemnity would cover such wrongful acts was a moot point)
If he was an employee, he was employed by the local health authority on a part-time basis – and certainly not by Barclays
He was, therefore, an independent contractor in business on his own account as regards his relationship with Barclays
Barclays was just another client of Doctor Bates

Links to the judgement and the Court’s press release can be found below:

http://www.bailii.org/uk/cases/UKSC/2020/13.html

https://www.supremecourt.uk/cases/docs/uksc-2018-0164-press-summary.pdf

Related Blog article:

https://r-login.wordpress.com/remote-login.php?action=auth&host=seancrossansscotslaw.com&id=155841657&back=https%3A%2F%2Fseancrossansscotslaw.com%2F2019%2F01%2F25%2Fthe-extension-of-vicarious-liability-the-demise-of-the-independent-contractor-defence%2F&h=

Copyright Seán J Crossan, 3 April 2020

The sands of time (or prescription)

Prescription: terror of the legal profession

When I discuss prescription with students for the first time, I usually can’t resist making the (admittedly) lame observation that it has nothing to do with going to see your General Practitioner for a medical appointment. Though, these last few days, I have been talking a lot about the Coronavirus or COVID-19 and the legal implications of this outbreak for sickness absence from work and eligibility for sick pay.

No, prescription has nothing to do with medicine and is a concept that all lawyers should be familiar with – indeed live in terror of perhaps?

I well remember one developer of legal software informing me that his case management system for personal injury claims had a feature which regularly provided a countdown towards the last possible date when a prospective claim must be submitted to the appropriate court with jurisdiction to hear the matter (so no excuses then?).

Lawyers who fall foul of prescription may well be opening a can of worms for themselves because the clients will almost certainly attempt to sue them for professional negligence.

If the principle of prescription is being deployed by the opposing side in a legal action, you (and your client’s case) may be in serious trouble.

In what way?

Essentially, you have not submitted the claim or complied with court procedures (e.g. deadlines for submission of documents/evidence) within the required time allowance.

In terms of the Prescription and Limitation (Scotland) Act 1973, most delictual (tort) claims must be brought within five years of damage to property. In terms of contractual actions, a pursuer or a claimant who is contemplating legal proceedings in Scotland will usually have 5 years from the effective date of the breach to submit a claim (the quinquennium).

On the other hand, personal injury claims must usually be lodged within three years of the date of the incident which caused injury (the triennium).

In England, the prescription period for contractual claims is 6 years and for most other claims the period is 3 years.

Time limits for submission of claims will be strictly adhered to – unless the Scottish courts deem it just and equitable to extend them.

Sometimes, certain claims – principally Employment Tribunal claims – must be submitted by the claimant in a very short space of time. Normally, for most employment claims (including discrimination claims), the claimant must submit an ET1 application to the Employment Tribunal within 3 months minus 1 day of the act that she is complaining about. If the dismissal from employment took place on 5 March, a claim for unfair dismissal must be submitted by 4 June – at the very latest – otherwise it will be time barred. Admittedly, for equal pay claims, longer time limits apply i.e. 6 months minus 1 day from the discriminatory act complained about.

Prescription is an extremely powerful weapon that can be used by an opposing lawyer to knock out another person’s claim. If prescription is relevant, then the merits of the case will simply not be discussed. The claim is time-barred and that is usually that (see the UK Supreme Court’s decisions in David T Morrison & Co Limited v ICL Plastics [2014] UKSC 48 and Gordon v Campbell Riddell Breeze Paterson LLP (Scotland) [2017] UKSC 75).

Out of time!

In two fairly recent cases before the Outer House of the Court of Session, the issue of prescription was successfully argued by the defenders’ legal teams.

In the first case – Brian Alexander Gracie v Edinburgh City Council [2019] CSOH 6 – an incident which had allegedly taken place in 1965 was time barred (unsurprisingly) on the grounds of prescription. More bizarrely, Mr Gracie, the pursuer himself admitted that he had little recollection of the incident and there was scant evidence to support his assertions in any event. Gracie was alleging that, while at school in the 1960s, the teaching staff had failed in their duty of care to him by permitting him to run out from the playground on to the road where he was hit by a car. Needless to say, his claim for a staggering £650,000 in damages was swiftly dispatched by the council’s lawyers.

A link to the decision of the Outer House in the above case can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh29.pdf?sfvrsn=0

In the second case – Midlothian Council v David Anderson Keith and others [2019] CSOH 29 – the council had built a housing development on land at Gorebridge which later turned out to be be dangerous because of gas leaks seeping from old coal mines at the site. The site was later demolished and rebuilt because of the risk to human health.

It had instructed a survey prior to the build and the engineering firm which carried this out had assessed the risk from gas to be very low. Due to this assessment, gas defences (e.g. a gas membrane) were not included in the build. In 2013, levels of gas harmful to humans were detected at a site property.

The council wished to sue the firm for allegedly providing negligent advice under their contract. The claim was dismissed by reason of prescription i.e. the contractual obligations between the two parties had become extinct. It’s worth noting that the engineers never accepted liability – the clinching argument of prescription made debate about liability completely irrelevant.

The disagreement between the two sides centred around the point at which the five year prescription period began. The engineering firm argued that it began when the development was completed (June 2009); the council responded by arguing that the critical date was when the high levels of gas were detected at the site (7 September 2013).

Lord Doherty clearly relied upon the UK Supreme Court decision in Gordon v Campbell Riddell Breeze Paterson LLP (Scotland) [2017] UKSC 75. The key date from which the 5 year prescription period should run was the date of completion of the housing development. His Lordship was firmly of the view that the key event was the date when the council placed reliance on the engineering firm’s assessment that it was safe to build on the site. This reliance could be pinpointed to a period between December 2007 and June 2009 i.e. when the development was commenced and completed. The action against the engineers (who never admitted liability) was commenced on 4 September 2018 – nearly 9 years after the development had been completed. The council’s claim was, therefore, dismissed.

A link to the decision of the Outer House in the above case can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh6.pdf?sfvrsn=0

Overriding prescription?

There is, however, a provision in Section 19A of the Prescription and Limitation (Scotland) Act 1973 which does permit a judge to override the normal rules about prescription. Claims which would normally be time barred may be permitted to proceed to a hearing under Section 19A if the judge believes that it is equitable to do so.

Such an approach was taken in the case of A v Glasgow City Council [2018] CSOH 116 which arose out of the events of the Glasgow Lorry Incident in December 2014. Relatives of the victims of this tragedy were permitted to proceed with their legal actions despite the relevant time limits having passed because it would not have been in the interests of justice to time bar the claims on a technicality.

A link to Lord Doherty’s Opinion in A v Glasgow City Council [2018] CSOH 116 can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh116.pdf?sfvrsn=0

Removal of the 3 year limitation period – historical child abuse claims

Sometimes Parliament will permit claims to proceed to court – even if they would normally be time barred or fall foul of prescription. This will be achieved by passing legislation and one recent example is the Limitation (Childhood Abuse)(Scotland) Bill.

Clearly, Parliament’s purpose in waiving the normal rules of prescription which are normally strictly adhered to by the Scottish courts is that it is just and equitable to do so. Put simply, the legislation is about righting an historic injustice.

On 14 March 2016, the Scottish Government published a draft Limitation (Childhood Abuse)(Scotland) Bill which was in response to the Consultation on the Removal of the 3 Year Limitation Period from Civil Actions for Damages for Personal Injury for In Care Survivors of Historical Child Abuse.

The draft Bill proposed to remove the triennium or 3 year time limit for cases of historical child abuse that allegedly took place after 26 September 1964.

This Bill was eventually passed by the Scottish Parliament becoming the Limitation (Childhood Abuse)(Scotland) Act 2017. It represents an exception to the normal rules regulating the limitation period for the submission to Scottish civil courts in relation to personal injury claims of this nature.

Conclusion

Time and tide wait for no one; delay is fatal; or tempus fugit (i.e.time flies) can all be applied to legal actions. If you don’t use it (i.e. your right to take court action), you lose it. This is quite sensible: it means that there is a natural cut off for legal actions and, consequently, the courts will not be swamped (well any more than they already are).

Another sensible viewpoint is that litigation should take place fairly quickly so that the evidence of litigants is fresh in the memory (the case of Brian Alexander Gracie v Edinburgh City Council [2019] CSOH 6 is an excellent illustration of this (see above).

Parties bringing claims to Scottish civil courts must be aware of the following:

The Triennium or 3 year period in which a claim for personal injury must be submitted; and/or
The Quinquennium or 5 year period in which contractual claims or delictual claims for property damage must be submitted.

Admittedly, Section 19A of the Prescription and the Limitation (Scotland) Act 1973 does allow Scottish judges to override the principle of prescription if it is just and equitable to do so.

Speaking of just and equitable grounds, the Scottish Parliament passed the Limitation (Childhood Abuse)(Scotland) Act 2017. This legislation represents an exception to the normal rules regulating the limitation period for the submission to Scottish civil courts of personal injury claims which involve historic child sex abuse allegations.

As a general rule of thumb, however, prescription remains the terror of the legal profession: get the client’s claim submitted on time or face a professional negligence claim.

Copyright Seán J Crossan, 6 March 2020

Sick to the back teeth …

In the last few months, I’ve discussed two medical negligence cases involving the NHS in Scotland. Since last week, I now have a hat trick with the decision of Lady Wise (sitting in the Court of Session) in respect of Derek Hamilton v Lanarkshire Health Board [2020] CSOH 24.

The facts of the case are pretty straightforward:

In 2013, Mr Hamilton had been playing with his grandson when he swallowed his dental plate. Now, it may seem facetious of me to say this, but Mr Hamilton’s grievance was not directed at his grandson’s high jinks. The issue was with what happened next. He attended the local NHS hospital for treatment and he was informed that he would have to undergo surgery to have the plate removed.

Mr Hamilton duly underwent an operation where Martin Downey, an experienced surgeon, removed said plate via the patient’s oesophagus. Unfortunately, while doing so the surgeon’s actions caused a tear or a perforation in the oesophagus and Mr Hamilton’s condition worsened rapidly. Consequently, the patient spent a total of 45 days in hospital as a result of complications arising from the botched procedure.

Mr Hamilton alleged that Martin Downey, had breached his duty of care to him and that he had carried out a procedure which “all general surgeons know is a catastrophe to be avoided.”

In finding Martin Downey liable for negligence, Lady Wise bluntly observed that:

“Mr Downey departed from usual and normal practice … and acted in a manner that no ordinarily competent general surgeon with colorectal speciality exercising ordinary skill and care would have done.“

Her Ladyship went on to state that:

“I have found that, but for the taking of that easily avoidable risk, the patient’s oesophagus would have remained intact as it was the act of removing the plate that caused the perforation. The pursuer [Mr Hamilton] has therefore established both breach of duty and causation.”

Mr Hamilton will receive £195,000 (plus interest) in compensation from Lanarkshire Health Board in settlement of his claim for personal injury.

A link to Lady Wise’s decision in the matter can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh24.pdf?sfvrsn=0

A link to a report on the BBC website about the case can be found below:

Man who swallowed his false teeth wins NHS damages

Derek Hamilton wins £195,000 damages after surgery to remove a dental plate left him seriously ill.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/22/duty-of-care/

https://seancrossansscotslaw.com/2020/01/25/counting-the-cost/

https://seancrossansscotslaw.com/2020/01/20/the-plumbers-arm/

https://seancrossansscotslaw.com/2019/08/05/an-unfortunate-error/

Copyright Seán J Crossan, 2 March 2020

For those in peril on the sea

The avoidable death of Annang Neurtey

As someone who works more in the civil rather than the criminal legal tradition, I tend to focus more on the outcome of obtaining damages or compensation for the victim of an industrial or work-place accident.

It’s simply a matter of horses for courses i.e. you stick to what you know or what you’re trained to do. Admittedly, most of the victims of industrial accidents that I have represented are perhaps more focused on obtaining compensation for their injuries – especially if these are life changing. Any criminal liability that the employer may have is purely incidental i.e. something of a side issue. Then again, I suppose you could say that about most civil actions where the criminality of the pursuer remains firmly in the background (think dangerous and careless driving incidents).

The victim of a work-place delict (or tort) may get some satisfaction from their employer or its officers and managers appearing in the dock at a subsequent criminal trial, but this is unlikely to be satisfying in the long term. It will not allow them to get their lives back on track or to move on; payment of compensation is perhaps a more satisfactory conclusion to things. I make that last statement fully in the knowledge that no amount of money can truly give victims back what they have lost.

Yet, every so often, I come across a story or an incident which underlines the importance of criminal law regarding industrial or work-place accidents.

In 2015, one such incident occurred onboard Aquarius, a fishing trawler which operated out of the North East Scottish fishing port of Banff. Serious failings in the operation of the vessel led to the death of a crewman. The victim, 47 year old, Annang Neurtey from Ghana, was swept overboard: his body has never been recovered – adding immensely to the grief of his family.

Anyone who has read Sebastian Junger’s 1997 novel, The Perfect Storm (or viewed the film adaptation of 2000) will be readily familiar with the dangers that fishing folk face at sea. That said, the tragedy which befell Annang Neurtey was entirely avoidable. If the skipper of the Aquarius had properly supervised the crew and followed basic safety procedures, the accident would not have occurred.

Following Mr Neurtey’s death, MB Aquarius Ltd of Buckie, the company which owned and operated the vessel, was investigated by Police Scotland and the Marine and Coastguard Agency. The conclusions reached by investigators were that basic risk assessments had not been properly carried out and that the employer had failed to put a safe system of working in place.

At a subsequent criminal prosecution against Mr Neurtey’s employer for health and safety breaches at Aberdeen Sheriff Court, the company pleaded guilty to breaches of marine safety laws, namely, Regulation 5(1) of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 and Sections 85 and 86 of the Merchant Shipping Act 1995.

A fine of £50,000 was imposed on the employer – it would have been £75,000 had an early plea of guilty not been entered by the company.

Mr Neurtey’s family will doubtless be contemplating a civil action for recovery of damages – unless of course his employer does the decent thing and quickly settles such a claim.

A link to the Marine and Coastguard Agency’s Report of its findings concerning Mr Neurtey’s death can be found below:

https://assets.publishing.service.gov.uk/media/57f3c2d7ed915d06fa000030/MAIBInvReport18_2016.pdf

A link to an article in the The Press & Journal about the trial can be found below:

https://www.pressandjournal.co.uk/fp/news/aberdeen/2011786/buckie-based-fishing-company-fined-50000-following-death-of-crew-member/

Those dark satanic mills …

Have concerns about health and safety gone mad? The former British Prime Minister, David Cameron certainly thought so when his Coalition Government (2010-15) introduced the Enterprise and Regulatory Reform Act 2013 (in particular, Section 69 of the said legislation) which removed the right to bring a civil claim for breaches of the Health and Safety at Work Act 1974.

It does not mean that employees can no longer bring a civil claim if an employer breaches its duty of care, but significantly claimants will no longer benefit from the presumption of strict liability previously imposed on organisations. Since this reform, it will be essential for claimants to prove negligence on the part of their employers for breaches of health and safety.

We would, however, do well to remember our history: concerns about health and safety were often ignored in the not so distant past.

The phrase “dark satanic mills” comes from the poem, And did those feet in ancient time by William Blake. The phrase has been interpreted as a searing indictment of the wickedness and exploitative practices of 19th Century British industrialists who most certainly put profit before people. This is why rare individuals such as the Welsh born industrialist, Robert Owen and his New Lanark Mills we’re regarded as truly radical and progressive employers.

The words of Blake’s poem were later put to music by the composer, Hubert Parry, and is better known as Jerusalem – an alternative English National Anthem for many because of its rallying call for social justice for the poor and the oppressed.

Over time, admittedly, the UK Parliament did intervene by bringing in legislation to curb some of the frankly dangerous and disreputable practices which had been tolerated in British factories, shipyards and mines. With the industrial revolution, Britain did indeed become the ‘workshop of the world’, but this accolade disguised the terrible human cost which could be measured in countless deaths, terrible injuries and overwhelmingly misery.

Some months ago, I saw a photograph by Bill Brandt in The Independent’s Saturday Magazine which documented life in an East Durham mining community. I was pretty shocked by what I saw: the houses of the miners had no windows. Think of it: these workers spent their days down the pit in almost total darkness. More shocking, was the fact that Brandt had taken the photograph as recently as 1937.

Yet surely, the bad old days are long gone? The British work-place has become a much safer place? Undoubtedly, as we shall see, employers have become much more aware of their responsibilities to their employees and workers in respect of the issue of health and safety.

That said, if you look at the info graphic produced below from the UK Health and Safety Executive, poor conditions and practices in British work-places still result in unacceptably high levels of injuries and illness – in 2019!

**Key facts for Great Britain 2019**
**Source:** http://www.hse.gov.uk/statistics/

Recently, Amazon, the global internet retailer, received very unwelcome media attention about the number of industrial injuries which have occurred in its UK premises. It’s probably fair to say that Amazon UK does not enjoy a particularly good reputation amongst trade unions regarding its employment practices and the recent media stories only compound this state of affairs.

Links to stories about Amazon UK on Sky News and Channel 4 News can be found below:

http://news.sky.com/story/hellish-conditions-at-amazon-warehouses-seriously-hurt-hundreds-11936881

https://youtu.be/gYUJjpIxkCU

Health and Safety at Work Act 1974

It is worth noting that the employer’s common law duties which aim to protect the health and safety of employees establishes a regime of civil liability. In other words, should the employer breach these duties, he will most likely face a civil action by the injured employee who will be attempting to recover compensation.

The Health and Safety at Work Act 1974, on the other hand, makes an employers criminally liable if they fail to take reasonably practicable steps to protect the health and safety of their employees. An employer will, therefore, face penalties in a criminal court for breaches of the Act.

The Health and Safety (Offences) Act 2008

The provisions of this Act came into force on 16 January 2009 and apply to offences committed after this date by employers. Scottish criminal courts will now have the power to impose maximum fines of £20,000 on employers who breach health and safety rules. In the most serious cases where health and safety rules have been breached or ignored, the courts may also have the right to imprison those responsible.

The Criminal Justice and Licensing (Scotland) Act 2010

Sections 65-68 of the Criminal Justice and Licensing (Scotland) Act 2010 should make it easier for organisations to face prosecution in Scotland in relation to allegations of criminal wrongdoing. According to Section 65, the term “organisation” applies to any of the following bodies:

a body corporate;
an unincorporated association;
a partnership;
a body of trustees;
a government department;
a part of the Scottish Administration;
any other entity which is not an individual

Such proceedings against organisations may be on indictment (Section 66) or on complaint (Section 67).

For a long time, it has been argued that an organisational culture which promotes lax practices or downright dangerous behaviour can lead to the commission of criminal offences. This an attempt to make organisations more accountable under the criminal law for conduct which causes harm to members of the public.

Overall, this means that an employer could face both a criminal action and a civil action for damages where he has neglected to obey the criminal law and the common law in respect of the employee’s health and safety.

Conclusion

If only we need reminding that health and safety remains a major issue in the work-place, we need only look to a story from Scotland which appeared in national media outlets just this week.

Workers at the Mossmorran and Ineos chemical plants took unauthorised industrial action (wildcat strikes) which was motivated by serious concerns about the lack of health and safety in the work-place. Happily, the employers seem to be listening to the concerns and the employees are now back at work.

Failure by employers to take health and safety issues seriously can leave themselves open to both civil and criminal liability. During Britain’s Industrial Revolution (from the 18th to the early 20th Centuries), it’s true to say that there was no such thing as a culture of health and safety in the work-place. Industrialists like Robert Owen were remarkable because they broke with the paradigm of British industrial practice i.e. workers were resources to be used up and tossed aside when no longer needed.

The growth of the trade union movement and the emergence of the British Labour Party (itself a creation of the union movement) led to pressure for change and tangible improvements were made to working practices. Despite these advances, cases such as the death of Annang Neurtey and the figures from the Health and Safety Executive surely caution us against complacency.

Links to reports on the BBC Scotland website about the industrial action can be found below:

Union GMB said the workers had “continuously raised their concerns about conditions and safety on-site”.

Mossmorran: Walkout at chemical plant over working conditions

Union officials said that concerns over health and safety and pay had been resolved following talks.

Mossmorran: Workers to return after wildcat strike in Fife

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/23/a-hard-days-night/

https://seancrossansscotslaw.com/2019/04/19/dont-stop-the-music/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

Copyright Seán J Crossan, 21 February 2020

Counting the cost

Photo by Ray Reyes on Unsplash

Recently, one of my students asked how judges determine the level of damages that the victim in a personal injury would receive. Was there a formula or did judges make a subjective decision?

I responded that it was the former answer and that there had to be a level of consistency and transparency displayed by judges when making these types of decisions.

The Damages (Scotland) Act 2011; the latest version of the Ogden Tables; judicial precedent; awards made by civil juries; and other relevant legislation will form a framework in which judges will operate to come to their decision in the matter of compensation.

The Ogden Tables deserve a special mention: these are compiled by actuaries using statistical calculations which assist lawyers and courts throughout the UK to assess the monetary value of personal injury and fatal accident claims.

A link to resources about the background to the Ogden Tables can be found below:

https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death

A case which I mentioned in one of my most recent blogs involved medical negligence. In George Andrews v Greater Glasgow Health Board [2019] CSOH 31, Lord Pentland very helpfully lays out in great detail the levels of compensation awarded to the pursuer and the rationale for these. In that case, the pursuer raised an action because his partner had died as a result of a failure by a junior doctor to admit her to hospital when she was chronically ill and had a history of very serious health issues.

It’s quite instructive to see how a judge arrives at deciding the level of compensation to be awarded to successful pursuers.

In George Andrews v Greater Glasgow Health Board [2019], Lord Pentland awarded a sum of approximately £187,614 to the pursuer. This can be broken down as follows:

In the first instance, £2,922.44 was awarded for the pain and suffering (solatium) caused to the deceased partner of the pursuer due to the failure to admit her to hospital.

Lord Pentland made the following observations:

“A number of cases were cited to me; they included: Gallagher v SC Cheadle Hume Limited [2004] CSOH 103, Bellingham v Todd 2011 SLT 1124, McGhee v RJK Building Services Limited 2013 SLT 428 and Manson and others v Henry Robb Limited 2017 SLT 1173. As well as these judicial awards, reference was made to some jury awards. [my emphasis] Having regard to the guidance provided by these cases, to the deceased’s life expectancy of 7.5 years, and to the pursuer’s evidence, I consider that an appropriate figure for damages under section 4(3)(b) of the 2011 Act is £75,000.”

Section 4(3)(b) of the Damages (Scotland) Act 2011 provides that the damages payable to the relative of a deceased person (“A”) should be:

b) such sum, if any, as the court thinks just by way of compensation for all or any of the following –

(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death,
(ii) grief and sorrow of the relative caused by A’s death,
(iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.”

Lord Pentland also awarded the pursuer damages for loss of support. In the case under discussion, the pursuer had lost his partner (whom he had lived with for 20 years before her death) as a result of medical negligence.

Section 4(3)(a) of the 2011 Act addresses this issue:

such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A’s death together with any reasonable expenses incurred by the relative in connection with A’s funeral,

This figure took into consideration the following matters:

“He has no family or children to console him. The pursuer misses the deceased greatly and has had substantial difficulty in adjusting to her death. He has had to sell the house they lived in and can no longer enjoy Christmas and going on holiday. Subparagraph (iii) covers matters such as the inability to share holidays, to pursue mutual interests and to go out socially together. …

… On the basis of a life expectancy of 7.5 years for the deceased, damages for loss of support in terms of section 4(3)(a) of the 2011 Act were agreed in the sum of £65,620, exclusive of interest. I shall allow interest on £55,000 at 4 per cent per annum from 8 January 2013 until the date of decree.”

In terms of Section 9 of the Administration of Justice Act 1982 , a successful pursuer can claim for ‘services’. As Lord Pentland identified in his judgement this might a monetary calculation to include the value of the following matters:

“… the deceased [the pursuer’s partner] did all the ironing and the dusting; the parties shared the cooking. It seems reasonable to proceed on the footing that the deceased would have prepared around half of the parties’ evening meals and that she would have spent several hours a week ironing and dusting. On that basis, I shall allow 3 hours per week at £7.00 per hour for the personal services rendered by the deceased to the pursuer at the time of her death. This brings out a multiplicand of £1,092 per year.”

It is usual practice for the calculation of the value of services to include the pursuer’s past and future losses.

Interest (usually at the statutory rate of 8%) normally accrues on an award of damages, but parts of the award (as in the present case) may have different rates applied.

A breakdown of Lord Pentland’s calculations in respect of damages plus interest (over and above the element for solatium) can be found below:

Section 4(3)(b) above refers to the Damages (Scotland) Act 2011

A link to Lord Pentland’s Opinion can be found below (paragraphs 170 to 185 of the judgement are particularly relevant):

https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2019csoh31.pdf?sfvrsn=0

Related Blog articles:

https://seancrossansscotslaw.com/2019/08/05/an-unfortunate-error/

https://seancrossansscotslaw.com/2020/01/20/the-plumbers-arm/

Copyright Seán J Crossan, 25 January 2020

Duty of care?

Photo by Nina Strehl on Unsplash

I have been thinking about the duty of care today – partly because I’m now teaching the Law of Delict (or Tort) to several groups of students and, partly, because of a story which has just been reported in the British media.

The story in question involved the tragic death of 15 year old Nora Anne Quoirin at a holiday resort in Malaysia in 2019. Nora, who had learning difficulties, wandered away from her parents’ accommodation at the resort and her body was found 10 days later in the jungle.

Nora’s parents are now suing the resort for breach of its duty of care to their daughter. They are alleging that the resort owners were negligent in that they failed to take basic safety measures which contributed to their daughter’s death.

Normally, 15 year olds would be expected to appreciate that certain behaviours or conduct on their part could put themselves in harm’s way, but Nora’s parents are arguing that she was particularly vulnerable because of health issues that she had suffered from early childhood. In other words, Nora may not have appreciated the full extent of the risk that she was undertaking when she left her room on that fateful evening.

A link to the story as reported in The Guardian can be found below:

https://www.theguardian.com/world/2020/jan/21/nora-anne-quoirin-parents-of-irish-girl-found-dead-in-malaysia-sue-resort-owner

Negligence is harm caused unintentionally and is, by far and away, the most likely type of delictual action that the Scottish courts will have to deal with.

Negligence claims arise because the defender owes what is known as a duty of care to the pursuer and, unfortunately, a breach of this duty occurs and, as a result, the defender suffers loss, injury or damage.

The leading case for negligence claims is Donoghue v Stevenson [1932] UKHL 100 – or the snail in the opaque ginger beer bottle as many generations of law students remember it.

Delicts which are committed unintentionally by the defender resulting in loss, injury or damage to the pursuer are the most common type of civil wrong. In these situations, the defender is said to have been negligent or careless. The law, therefore, imposes a duty on each of us not to cause harm to others. Each of us has interests which the law protects, for example, the right to personal security and the right to enjoy a good reputation.

Donoghue v Stevenson [1932] was not the first case of its kind to be brought before the Scottish courts. That particular honour must go to Mullen v A G Barr & Co Ltd [1929] SC 461 where the pursuer attempted to bring a compensation claim in a situation where dead mice were found in ginger beer bottles by the Mullen siblings. Unfortunately, for the Mullen children, the Court of Session dismissed their claim that there was no legal relationship i.e. between them and the ginger beer manufacturer. The importance of the Donoghue decision was that it would overrule the limitations imposed by Mullen and it would establish that a duty of care could arise between the manufacturer (Stevenson) and the ultimate consumer (Mrs Donoghue).

In order to succeed when bringing a negligence claim before the courts, the pursuer must show that the defender owes a duty of care, that the defender was in a position to cause harm and that the defender failed to prevent this foreseeable kind of harm from occurring. Additionally, the pursuer must show that the defender’s breach of duty was the effective (or proximate) cause of the loss or harm suffered by her.

Lord Atkin who gave the leading speech in Donoghue v Stevenson [1932] went to great pains to stress a concept which has since become known as the neighbourhood principle:

The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply, ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so a_ffected when I am directing my mind to the acts or omissions which are called into question.

The defender does not owe a duty of care to the whole wide world, but only to those individuals whom the defender, if he were a reasonable person, would realise that his actions might cause them to suffer loss, injury or damage. Basically, the defender should have realised that his actions or failure to act will result in certain negative consequences being suffered by the pursuer.

This was a point forcefully driven home in the famous decision of Bourhill v Young [1943] AC 92, where it was held that a deceased motorcyclist (John Young) owed absolutely no duty of care to a bystander (Mrs Bourhill) who came up Edinburgh’s Colinton Road to view the aftermath of the accident which had been caused by the motorcyclist’s dangerous behaviour. The bystander was not within the contemplation of the motorcyclist. Put simply, she was not someone whom he should have realised might be endangered by his dangerous and negligent actions. In fact, she was in no danger at all from John Young’s actions (until she placed herself in danger by going up the road to gaze upon the aftermath of the accident).

Similarly, this was a point also raised in the more recent case of Weddle v Glasgow City Council [2019] SC EDIN 42 where the pursuer’s claim for damages for psychiatric injuries was dismissed by the All Scotland Sheriff Personal Injury Court. Danielle Weddle was not someone that the driver of the vehicle (which caused death and destruction in Glasgow City Centre in December 2014) should have contemplated might be harmed by his breach of duty i.e. driving the City Council’s bin lorry whilst medically unfit to do so.

Related Blog Article:

https://seancrossansscotslaw.com/2019/12/10/post-traumatic-stress-or-psychiatric-injuries/

Conclusion

In Donoghue v Stevenson [1932], Lord Atkin deliberately drew upon the Christian parable of the Good Samaritan when he formulated the neighbourhood principle. For those unfamiliar with the parable, the Jewish man (who had been attacked and robbed by brigands and left for dead on the road to Jericho) was rescued by a Samaritan (an individual who belonged to a group detested by the Jews for their failure to adhere to the more rigorous rules of Judaism). Before the Samaritan came down the road, a Priest and a Levite stumbled upon the aftermath of the robbery, both decided not to intervene and passed by on the other side of the road.

Lord Diplock, sitting in the House of Lords, famously stated in Dorset Yacht Co. Ltd v Home Office [1970] UKHL 2 that despite the questionable morality of their decision not to help the injured man, the Priest and the Levite would have incurred absolutely no civil liability in English law for their actions and, indeed, in Scotland the position would have been exactly the same.

Lord Atkin’s statement is initially misleading in that he deliberately subverted the language of the Christian Gospels by referring to your neighbour. When Jesus Christ was asked the question by the lawyer (in Luke’s Gospel where the Parable of the Good Samaritan is to be found): ‘Lord, who is my neighbour?’ the fairly daunting reply that the lawyer received is that ‘Everyone is your neighbour’.

To lawyers, however, the above question receives a much more restricted answer. The defender does not owe a duty of care to the whole wide world, but only to those individuals whom the defender, if s/he were a reasonable person, would realise that their actions might cause others to suffer loss, injury or damage. Basically, the defender should have realised that their actions or failure to act will result in certain negative consequences being suffered by the victim.

It will be interesting to see how the legal action brought by Nora Quoirin’s parents against the owners of the Malaysian holiday resort progresses.

The plumber’s arm

Photo by pan xiaozhen on Unsplash

The latest Blog title sounds like the name of a quaint English or Scottish public house, but as you might expect it relates to matters legal.

This last week, I have just begun to teach my First Year university students about the law of delict (or tort in other common law jurisdictions) and, as always, I’m looking for relevant cases or stories in the news to illustrate this area.

Obligingly enough, a report of a case came through on Friday 17 January 2020 about a plumber called Darren Conquer who has just been awarded £540,000 in damages by the Outer House of the Court of Session as a result of being the victim of medical negligence (see Darren Conquer v Lothian Health Board [2020] CSOH 8).

As I often say to students the basis of the law of delict is loss or injury wrongfully caused (or as the Romans would have said: damnum injuria datum).

Mr Conquer had injured his arm while playing football and he had, subsequently, undergone medical treatment for this. This is where it gets interesting: the injury had occurred some 16 years ago, but Conquer was not suing the person or persons who had injured him during the football match.

This is, of course, where the issue of volenti non fit injuria arises. When you engage in a physical sport, like football, you must accept the risk of possible injury – on the proviso that all of the players conduct themselves properly and within the rules of the game.

The basis of the pursuer’s claim was that the Health Board, as the employer of the doctors who treated him, was vicariously liable because the injury to the arm been misdiagnosed and, consequently, the proper medical procedures had not been followed. Put simply, the pursuer was arguing that the Health Board was culpable or at fault for his losses.

Had the correct diagnosis been made by the doctors and the correct treatment applied, the pursuer would have made either a full recovery or nearly a full recovery and would have been able to return to his job within 6 months of sustaining the injury. The real issue seems to have centred around the failure by the doctors to carry out surgery on the pursuer at a much earlier and vital stage of his treatment.

In short, the medical negligence was the primary cause (the causa causans) of the pursuer’s losses i.e. his inability to work at his chosen trade of plumber (a skilled trade where he had the potential to make a good living).

The doctors treating Conquer owed a duty of care to him and they had been negligent in the manner of both the diagnosis of the severity of the injury and the treatment which followed (or didn’t follow perhaps more accurately).

A link to the opinion of Lady Carmichael in the Outer House can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh8.pdf?sfvrsn=0

More medical negligence

For another recent case on medical negligence, please see the Opinion of Lord Pentland in George Andrews v Greater Glasgow Health Board [2019] CSOH 31.

In the above case, the pursuer, the partner of a woman who died as a result of medical negligence, was successful in his claim for damages.

Lord Pentland noted:

“Since I have found that (a) Dr Izzath failed to advise the deceased that she should be admitted; (b) that his failure to give her that advice was negligent; and (c) that the deceased would have accepted the advice had it been given, I need not make any separate finding as to the deceased’s mental state.”

His Lordship went on to observe that:

“I would merely reiterate that I am in no doubt that if
Dr Izzath had advised the deceased that she required to be admitted to hospital, she would have accepted his advice.”

A link to Lord Pentland’s Opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2019csoh31.pdf?sfvrsn=0

Related Blog Articles:

https://seancrossansscotslaw.com/2019/04/03/where-theres-blame-theres-a-claim/

https://seancrossansscotslaw.com/2019/08/05/an-unfortunate-error/

https://seancrossansscotslaw.com/2019/12/09/howzat-or-volenti-again/

https://seancrossansscotslaw.com/2019/12/13/joint-and-several-liability/

https://seancrossansscotslaw.com/2019/12/10/post-traumatic-stress-or-psychiatric-injuries/

https://seancrossansscotslaw.com/2019/02/15/i-wish-i-hadnt-done-that/

https://seancrossansscotslaw.com/2019/11/19/i-wish-i-hadnt-done-that-continued/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/12/23/act-of-god/

https://seancrossansscotslaw.com/2019/04/19/dont-stop-the-music/

https://seancrossansscotslaw.com/2019/01/25/foreign-objects-or-ive-got-a-bone-to-pick-with-you/

https://seancrossansscotslaw.com/2019/12/30/foreign-objects-or-ive-got-a-bone-to-pick-with-you-part-2/

https://seancrossansscotslaw.com/2019/01/26/volenti-non-fit-injuria-or-hell-mend-you/

Foreign objects or I’ve got a bone to pick with you … (Part 2)

Photo by Owen Beard on Unsplash

One of the first articles which I wrote for this Blog concerned the liability of producers and suppliers for foreign or dangerous objects.

The article had been inspired by an incident at a Primark store where a member of the public had sensationally discovered part of a human finger bone in a pair of socks.

This gave me a very convenient opening to review the area of product liability. The leading case, of course, is Donoghue v Stevenson [1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317 or the ‘snail in the ginger beer bottle’. This decision of the House of Lords established the foundations of the modern law of negligence – in Scotland and in England.

Mrs Donoghue did not have a contract of sale with Mr Minchella, the seller of the lemonade bottle and, therefore, she could not bring a claim for damages in terms of the (then) Sale of Goods Act 1893. Even today, Mrs Donoghue would not have a remedy against the seller under the Consumer Rights Act 2015.

So, who could Mrs Donoghue bring a claim against? The manufacturer would seem to be the logical response to this question, but this is the application of hindsight in late 2019. Several years before the Donoghue case, a claim against a manufacturer for harm caused by a dangerous product had been comprehensively rejected by the Inner House of the Court of Session (see Mullen v A G Barr & Co Ltd [1929] SC 461). The House of Lords was, therefore, breaking new legal ground when it found in Mrs Donoghue’s favour against Stevenson, the manufacturer of the lemonade bottle. Stevenson owed a duty of care to the ultimate consumer of the product – irrespective of whether this individual had a contract of sale with the company.

Since Donoghue v Stevenson, this area of the law has developed considerably with the UK Parliament passing the Consumer Protection Act 1987. Part 1 of this Act established a regime of strict liability in relation to dangerous products. Previously, the claimant would be required to prove fault on the part of the manufacturer.

Theoretically, it’s now much easier for a consumer to win a claim against a manufacturer (or someone in the chain of supply) if s/he have suffered injury or damage to property as a result of exposure to dangerous products.

Returning to Primark, the company and the Police have conducted an investigation into the incident and they have not been able to establish responsibility, anywhere in the chain of supply, for the bone’s inclusion in the pair of socks.

It looks as if the affair will go down as one of life’s unsolved mysteries.

A link to the latest developments in the Primark case can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.281219/data/9261571/index.html

Coffee, Sir?

Photo by Edward Eyer on Unsplash

You get on the plane for a routine flight between Palma de Mallorca to Vienna and, next thing, you’re thinking about instructing lawyers to pursue a personal injury claim on your daughter’s behalf.

Like billions of air travellers before him, HM probably had no idea when asked by the flight attendant whether he wanted a coffee that it would lead to legal action before the Court of Justice of the European Union (CJEU) (see Case C532/18 Niki Luftfahrt).

When we think of accidents involving airlines, we often fear the worst consequences, but what about a coffee cup which spills over and scalds a 6 year old child?

This is precisely what happened on the flight from Palma to Vienna. The coffee had been served to the child’s father (HM) and placed on his folding table. For unknown reasons, the cup tipped over and injury occurred to the child (GN).

The young girl then sought compensation for her injuries from the Austrian airline Niki Luftfahrt GmbH (which had subsequently gone into liquidation), so father took action (on her behalf) against the administrator of the airline (ZU).

The question which then arose was whether such an incident was within the meaning of the definition of ‘accident’ which is to be found within the international agreement known as the Montreal Convention. International Conventions are entered into by States to lay down common legal principles and thus avoid the (serious) problem of competing legal jurisdictions e.g. between France and the United States of America. The Montreal Convention has been incorporated into EU Law since 28 June 2004.

The Supreme Court of Austria referred the matter to the CJEU for clarification under the preliminary ruling procedure in terms of Article 267 of the Treaty on the Functioning of the European Union (TFEU).

The CJEU noted that the liability of airlines for personal injuries under the Montreal Convention is strict (see paragraph 36 of the judgement). The Court made two other observations (at paragraphs 33 and 34 of its judgement):

‘In the present case, it is apparent from the wording of Article 17(1) of the Montreal Convention that, in order to engage the liability of the carrier, the event causing the death or bodily injury of the passenger must be classified as an ‘accident’ and that accident must take place on board the aircraft or in the course of any of the operations of embarking or disembarking. …

… Since the concept of ‘accident’ is not defined anywhere in the Montreal Convention, reference must be made to the ordinary meaning of that concept in its context, in the light of the object and purpose of that convention.’

So was the incident which occurred on the flight from Palma to Vienna an ‘accident’ within the meaning of the Convention?

The answer to this question was an emphatic yes from the CJEU. According to the Court, ‘the ordinary meaning given to the concept of ‘accident’ is that of an unforeseen, harmful and involuntary event.’

As the CJEU stated:

‘… the concept of ‘accident’ … covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typically associated with aviation.’

Airlines can always escape liability if they can show that the injury was caused by the acts or omissions of the passenger, but in this case this was not an option.

A link to a press release summarising the details of the Court’s judgement can be found below:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=221796&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=794192

A link to the judgement of the Court can be found below:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=221796&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=794192

Copyright Seán J Crossan, 24 December 2019