Insight from Horwich Farrelly's Large & Complex Injury Group - Issue #86 | 12 July 2018
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Insight
from Horwich Farrelly’s
Large & Complex Injury Group
Issue #86 | 12 July 2018
Alexander House T. 03300 240 711 www.h-f.co.uk
F. 03300 240 712
94 Talbot Road
Manchester
M16 0SP
Page 1
Welcome to Insight
In this week’s edition of Insight, we will be covering cases
relating to:
Whether an accident caused a claimant to suffer a
stroke
Hourly rates when the claimant instructed a central
London solicitor
And we bring news of positive developments in the
Manchester Courts.
Malcolm Henke
Partner & Head of LACIG
Public Liability
Carter v Kingswood Learning and Leisure Group Limited was present at an organised abseiling lesson, primarily
(2018) EWHC 1616 (QB) involved a claim for personal designed for the children.
injuries brought by the claimant against the defendant, The construction upon which the abseiling took place was a
the operator of an outdoor events centre primarily purpose-built tower the top platform of which was
engaged in providing school children with "adventure accessed by a ladder. It was common ground that it was
playground" activities. designed for a novice. The principal part of the tower on
The claimant suffered a stroke in the days following 5 which the abseiling was conducted was a sheer vertical
February 2013 which it was accepted was consequent face approximately 8-9 metres in height from the ground,
upon a vertebral artery dissection ('VAD') that had which itself was accessed from the top platform by first
occurred at some stage prior thereto. The essential issues descending an access ramp about a metre or a little more
were whether (i) the VAD occurred as a result of the in length set at an angle of approximately 30° to the
abseiling exercise the claimant undertook at the vertical.
defendant’s centre on the 29 January 2013 and (ii) if so, Two harnesses were attached to the person undertaking
the VAD was caused by the negligent supervision of that the abseiling and ropes were attached to each harness. It
exercise by the defendant's abseiling instructors. was common ground between the parties’ experts that
At the time of the material events in January 2013 the support for the neck was not given in the kind of exercise
claimant was aged 47 and was a primary school teacher. undertaken in this case.
In the early afternoon of 29 January 2013, the claimant
Page 2
As the claimant had given varying accounts as to how the neck was not quite as dramatic as had been suggested.
accident had occurred the judge invited the claimant’s The process of re-creation of a relatively insignificant
team to articulate clearly in some Amended Particulars of event had caused the event to become magnified in the
Claim how it was said to have occurred. claimant's mind. Unless the jerk to the neck could be
shown to have been occasioned as the result of some
The material amendment was in these terms:
negligently permitted slack in the safety rope, no case of
"The Claimant will aver that for her to suffer this type of fall breach of duty could be made out.
or flop backwards it was necessary for the safety rope,
Given this conclusion, the nature and quality of any
attached to her chest harness, to have become slack.
instructions given or not given were also irrelevant, but for
Because of the function of the belay device (the Italian
the avoidance of doubt, on the evidence there was nothing
hitch) this slack could only have formed by one of two
lacking in the instructions given to the claimant: she was
mechanisms. Either, the Defendant's instructor took hold of
doing what she was expected to do.
the live rope (the rope on the Claimant's side of the Italian
hitch) and pulled it, feeding surplus rope through; or, the That overall conclusion made it unnecessary to resolve the
Defendant's instructor fed rope through the Italian hitch issue of whether the jerk of the neck was, more likely than
when the Claimant pulled on the safety rope herself. If not, to have been the cause of the VAD, rather than
either of these actions were undertaken whilst the merely one possible cause. The foregoing analysis had
Claimant's weight was supported through the main abseil been undertaken on the assumption that the causal link
rope with the brake applied, the tension on the safety rope between the jerk to the neck and the VAD had been made
would be lost and the safety rope would become slack. If out.
enough slack formed on the safety rope it would cease to be
This was not an easy issue to resolve. The studies to which
effective in restraining the Claimant from falling or flopping
the claimant’s medical expert referred were intuitively
backwards if she was unable to adequately control her
persuasive, but there was no doubt that they had their
descent using the brake on the main abseil rope."
statistical limitations and would not be taken as
These two mechanisms were predicated on (a) the brake establishing anything to the extent of scientific certainty.
having been applied and (b) slack being formed on the They did, however, add broad support for the proposition
safety rope in one of the two ways described. that in some cases a VAD could be caused by minor neck
injury.
Finding in favour of the defendant on liability, the High
Court judge held on the evidence that whilst what was That did prove that this was the cause (or indeed merely a
suggested on the claimant's behalf was not wholly contributory cause) in the claimant's case. However, given
impossible, all the evidence and the factors pointed to the the report soon after the event of a jerk to the neck during
unlikelihood of the claimant (a) having applied the brake the abseiling exercise, followed shortly thereafter by well-
and then (b) having pulled on the safety rope at or about attested neurological symptoms, the judge would have
the transition. concluded, albeit on a bare balance of probabilities, that
the jerk constituted minor neck strain which did cause the
It was much more likely that she maintained a continuous
VAD.
descent over and through the transition and something
happened that caused her neck to jerk. Whether it was the The claimant was represented by Barlow Robbins.
sensation of going over the transition was impossible to
The defendant was represented by BLM.
say, but the purpose of the initial slope leading to the
vertical drop was to make the exercise easier. There could
be no legitimate criticism of the design of the tower and
none had been made.
‘The process of re-creation of a relatively insignificant
event had caused the event to become magnified in the
claimant's mind’ Comment
The net effect of the judge’s analysis was that he did not Although the judge found against the claimant on
consider it had been established, on the balance of liability, his acceptance of a causal link between a
minor jerk and the onset of the stroke will be of
probabilities, that the there was a flopping of the upper concern to defendants. If faced with a similar
part of the body in the way that the claimant had claim it is clear that the issue of causation will
described it with a consequent neck injury. The jerk to the need to be addressed in great detail.
Page 3
Hourly Rates
The appeal in JXA (a minor) v Kettering Hospital NHS The Master determined that the appropriate hourly rates
Foundation Trust (2018) EWHC 1747 (QB) related to for the claimant's solicitors as the receiving party should
whether the hourly rates claimed by the claimant’s be
solicitor for dealing with the issue of liability were
a. £350 for a Grade A partner.
reasonably incurred and reasonable in amount. They must
be objectively reasonable in the circumstances of the b. £200 for a Grade C assistant solicitor.
particular case. The claimant had instructed a solicitor in
central London but lived outside of London and chose her c. £150 for a Grade D trainee/paralegal.
solicitor from an internet search. The rates contended for had been
The grounds of appeal were that the Master assessing the a. £380 to 31 March 2013 then rising at the rate of £10 pa
costs: every 31 March up to £420 to 16 November for a Grade A
1. Applied the wrong test and failed to have regard to any partner.
or any proper reasonable interest of the claimant given the b. £150 rising at £10 pa to £190 over the same period for a
importance of the litigation to him. Grade D trainee/paralegal.
2. Failed to take into account or give sufficient weight to c. £270 for a Grade C solicitor from 1 January 2017.
the relevant considerations as set out in the Bill of Costs
and the replies and the submissions made orally at a costs ‘…determining whether costs had been "reasonably
hearing. incurred" was a two-stage process’
3. Gave undue weight to less relevant factors including the It was well established and common ground that
theoretical availability of alternative and unnamed determining whether costs had been "reasonably incurred"
solicitors across a number of geographic locations, in was a two-stage process. First, having regard to all
particular outer London, Nottingham, Birmingham and relevant considerations whether the successful party had
Manchester. acted reasonably in employing the solicitors who had been
instructed and, secondly, whether the costs charged were
4. Failed properly to consider the effect of inflation on the reasonable compared with the broad average of charges
claimed hourly rates between year ending 31 March 2013 made by similar firms practising in the same area; that
and 16 November 2017. while availability of less expensive solicitors elsewhere
might be relevant to the determination of the first
Page 4question, it had no relevance to the second. country, including London and even in the City, to have
concluded that the claimed rates were too high and
The claimant's primary complaint was that the Master did
allowed rates that accorded with his knowledge and
not answer the first question as to whether it was
experience. He recognised the gravity and complexity of
reasonable to instruct the solicitor in question and so his
the case and allowed rates significantly in excess of the
decision as to whether the charging rate was reasonable
rates for summary assessment.
was flawed.
The Master did err in not directly answering the first
The High Court judge held that the Master had not directly
question in relation to the reasonableness of the claimant's
addressed the first question as he should and decided
decision to instruct the solicitor selected. Further, his
whether the choice of solicitor was objectively reasonable
judgment lacked clarity as to why he considered Outer
in the circumstances. When pressed, he implied it was (or
London rates to be appropriate but, nevertheless, he did
may have been) an unreasonable choice, indicating that
take account of City rates. He also clearly recognised the
he took a theoretical locality of Outer London but, guided
complexity of the litigation and reflected that in
as he was by the White Book, he then went on to say that
determining the rates that he did.
he could "take into account comparable firms doing
comparable work’’, and that would account for firms In the event of allowing the appeal, the judge was invited
around the country, including within the location of the to determine what cost rates would be reasonable for
claimant’s solicitor. firms practising in the same area. On all relevant facts and
applying appropriate considerations, the rates determined
However, that conclusion was not determinative of the
by the Master fell within the reasonable band of decisions
appeal. The question then had to be addressed as to
open to him, notwithstanding his failure to answer clearly
whether, in the final analysis, the hourly rates claimed by
the first question in the required two stage process.
the solicitor were reasonable and that the Master was
wrong not to allow them and to set the rates that he did. In these circumstances, although the claimant technically
Pursuant to CPR.44.3, any doubt as to the reasonableness succeeded in relation to the first ground of appeal, the
of the rates had to be resolved in favour of the defendant. outcome of the appeal was that the hourly rates found by
the Master were, nevertheless, the appropriate rates for
The Master had no evidence as to what rates other firms
this claim and the appeal, in its result, was dismissed.
engaged in this type of work charged or the level of
expertise of such firms. What he did have was a claim for It was agreed by both parties that the costs should follow
an incremental year on year raising of the rates charged. the appeal. There was technical merit and some success in
He took account of the guideline rates for the summary relation to the grounds of appeal although the claimant
assessment of costs. On behalf of the claimant it was had not ultimately succeeded in the outcome. The
emphasised that these rates were for significantly less appropriate order on the appeal in all the circumstances
complex cases and no more than guidelines, and were was 'no order as to costs'.
rates set in 2010 and took no account of subsequent
The claimant was represented by Fieldfisher LLP.
inflation.
The defendant was represented by Acumension.
The defendant answered by referring to the absence of
any evidence justifying the incremental annual increase or
the impact of inflation on this market over the period in
question, the refusal by the Master of the Rolls in July
2014 to adjust the hourly rates following the proposals of
the CJC Cost Committee's Report of May 2014 (which
proposed a reduction in City rates) and submitted that it
would be wholly wrong for the Master to have transposed
Comment
a back-calculated approach or adopted a general
inflationary approach. This case is of some assistance to defendants in
that although the claimant’s selection of a City
It was not entirely clear how the Master reached his
solicitor was found to be reasonable, the hourly
decisions as to the appropriate hourly rate but he
rates claimed were reduced significantly.
appeared, on the evidence before him and applying his
knowledge of the hourly rates charged and allowed in
cases of this seriousness carried out by firms around the
Page 5News from the courts
in Manchester
Following discussions between the Manchester
County Court Users Committee and the local
judiciary, the court has adopted a new protocol for
clinical negligence and personal injury cases with a
stated value in excess of £200,000. The highlight of
the protocol is that there will now be six specialist
District Judges designated to deal with these areas
of work.
Comment
The new protocol will apply to cases now issued
through the Civil Justice Centre but there is also As we have been advocating, for many years, the
provision to apply for existing cases to be considered allocation of PI cases to specialist judges, we
for transfer. welcome this initiative. It is to be hoped that if it
is a success, we will see it rolled out in other civil
justice centres in England and Wales.
This push towards the more efficient handling of
cases is further enhanced by the nomination of single
points of contact to deal with queries at each stage
of the process, from issue to final listing for trial.
Upon receipt of a new claim the issue team will
allocate the cases pro rata. After issue, the claim
forms will be stamped and endorsed with the name
of the allocated judge.
Page 6Disclaimer & Copyright Notice
The contents of this document are considered accurate at the time of delivery. The information provided does not constitute specific
legal advice. You should always consult a suitably qualified solicitor about any individual legal matter. Horwich Farrelly Solicitors
accepts no liability for errors or omissions in this document.
All rights reserved. This material provided is for personal use only. No part may be distributed to any other party without the prior
written permission of Horwich Farrelly Solicitors or the copyright holder. No part may be reproduced, stored in a retrieval system or © Horwich Farrelly 2018
transmitted in any form or by any means electronic, mechanical photocopying, microfilming, recording, scanning or otherwise for
commercial purposes without the written permission of Horwich Farrelly or the copyright holder.
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