Insurance Litigation Update - 20/4/09
Whiplash Case Update
MacDonald v Bruce, Cupar Sheriff Court, 8 August 2008
A 49 year old claimant suffered a whiplash injury to his neck and was left with intermittent neck pain and headaches, severe low back pain, right elbow pain, travel anxiety and flashbacks leading to a curtailment of his leisure pursuits until he recovered after seven months. General damages awarded: £2,600.
The full judgement can be found here:
http://www.scotcourts.gov.uk/opinions/A340_07.html
McCord v Thomson, Edinburgh Sheriff Court, 16 October 2008
A 36 year old claimant sustained soft tissue injuries to her lower back, wrist, elbow and forearm, and developed mild tendonitis in her ankle. Her back pain settled after ten days and the other injuries resolved within eight months. General damages awarded: £3,400.
The full judgement can be found here:
http://www.scotcourts.gov.uk/opinions/SE52.html
Smith v McNair, Court of Session, 7 November 2008
A 54 year old claimant who suffered a neck injury raised an action of damages in respect of the acceleration of the development of Parkinson’s disease. The Court held that the claimant was only entitled to general damages in respect of the minor injuries she suffered as a result of the accident. There was no proof that the claimant had suffered a head injury therefore there was no proof that the accident had accelerated the development of Parkinson’s disease.
The full judgment can be found here: http://www.scotcourts.gov.uk/opinions/2008CSOH154.html
Russell v Jenkins, Glasgow Sheriff Court, 11 November 2008
A 24 year old claimant suffered pain in his left knee and lower back for a maximum of six to nine months, pain in his right shoulder for three of four days, and three or four minor facial cuts which healed within one week. General damages awarded: £3,000.
The full judgement can be found here:
http://www.scotcourts.gov.uk/opinions/PD72_08.html
Ashton v Skews, Edinburgh Sheriff Court, 19 January 2009
A claimant sustained neck and lower back pain and bruising after the accident, and recovered after 9 months. General damages awarded: £2,000.
The full judgement can be found here:
http://www.scotcourts.gov.uk/opinions/A77_07.html
Road Traffic Case Update
Post Traumatic Stress Disorder
Geoffrey Mitchell, Advocate as Curator ad Litem to Marc Bell v Allianz Cornhill, Court of Session, 9 September 2008
A 7 year old boy ran into the road and was struck by a car and dragged along under it for 20 yards before it stopped. At the scene of the accident the paramedics scored his Glasgow Coma Scale at 15. He sustained a compound fracture of his femur, extensive burns to his hands, legs, knuckles and arms, a deep shoulder laceration and a deep head wound. Liability was agreed at 50%. The case went to trial on the question of damages only. The principal questions at issue was whether (a) the claimant sustained a brain injury in the accident resulting in neurological problems and (b) whether the claimant suffered PTSD. A number of medical experts gave evidence at the trial. The court held that the claimant did not sustain a brain injury or PTSD as a result of the accident. The court awarded £25,000 for general damages (for the claimant’s physical injuries only) and special damages at £5,245.
The full judgment can be found here: http://www.scotcourts.gov.uk/opinions/2008CSOH132.html
Liability
O’Neil v Reynolds, Edinburgh Sheriff Court, 2 December 2008
A 46 year old claimant was pulling out from a line of parked cars when the defendant drove into the offside of the claimant’s vehicle. The claimant was found to be wholly at fault as she had not looked over her shoulder to check there were no vehicles coming from the rear and had not indicated before moving off.
The full judgment can be found here:
http://www.scotcourts.gov.uk/opinions /A418_07.html
Contributory Negligence
Smith v Finch, EWHC 53(QB) 23 March 2009
This is an English High Court case brought by the claimant cyclist (S) against the defendant motorcyclist (F) following a road traffic accident. The claimant suffered serious head injuries when his bicycle collided with F’s motorcycle. S argued that F had ridden his motorcycle along the road at excessive speed, failed to keep a proper look out and failed to see S who was on the proper side of the road at all times. F argued that S pedalled out of a side road into his path and the claimant’s injuries had been sustained wholly or partly because he had not been wearing a helmet. The court held that the defendant was entirely at fault as he had been travelling well in excess of the speed limit and the collision occurred as he tried to overtake S. The court made no finding of contributory negligence as F failed to show that an approved helmet would have prevented the head injuries.
Although the defendant was unsuccessful in arguing contributory negligence in this case, this judgement does provide an authority for arguing contributory negligence in other cases: Lord Justice Griffith Williams stated at para 44 of his judgement:
“There can be no doubt that the failure to wear a helmet may expose the cyclist to a risk of greater injury…subject to issues of causation, any injury sustained may be the cyclist’s own fault.”
The full judgement can be found here:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/53.html&query=smith+and+hoskins&method=boolean
Employers’ Liability Case Update
Spencer-Franks v Kellog Brown and Root Limited, House of Lords, 2 July 2008
An oil rig worker claimant sought damages in respect of injuries he sustained after being struck on the face by a door closer he was attempting to repair in the course of his employment. He sought damages from, first, his employers and, secondly, the owners and operators of the oil rig. It was held, on appeal to the House of Lords, that the door closer was “work equipment” for the purposes of the Provision and Use of Work Equipment Regulations 1998, and that the claimant was repairing it, therefore “using” it for the purposes of the 1998 Regulations when he sustained his injury. This case confirms that work equipment will be given a very wide interpretation and will cover many items in premises, which many of us would not generally think of as work equipment.
The full judgment can be found here:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080702/spence-1.htm
The Damages (Asbestos-related Conditions)(Scotland) Bill
The Bill was passed by the Scottish Parliament at Stage 3 on 11 March 2009 and received Royal Assent on 17 April 2009.
The Act effectively overturns in Scotland the House of Lords ruling in Johnston v NEI International Combustion and Others 2007 UKHL 39 that asymptomatic pleural plaques (an asbestos-related condition) do not give rise to a cause of action because they do not signify damage or injury that is sufficiently material to found a damages claim for damages against an employer in tort. Although the Johnston decision was not legally binding in Scotland, it was “highly persuasive”. The passing of the legislation creates conflicting positions north and south of the border.
The Act is expected to be challenged by Zurich, Norwich Union, RSA and Axa who argue that the legislation will open the floodgates to similar controversial damage claims. They have taken legal advice on the possibility of mounting a judicial review.
The Act is not yet publicly available however a version of the bill, as passed, can be found at: http://www.scottish.parliament.uk/s3/bills/12-Asbestos/index.htm
This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.
