Tuesday, 31 July 2012

Postcard from Chicago

This blog is a first. In contrast to my usual musings, which are penned at various places in the UK, this one comes all the way from Chicago, Illinois. And no, before anyone tells me that I must be a workaholic, I'm not here on holiday.

I'm here as an attendee of the American Association of Justice (AAJ) annual convention, which is being held at the Chicago Hilton. The AAJ has been going for over 65 years, and previously  known as the Association of Trial Lawyers of America (ATLA). Its purpose is to support plaintiff lawyers of all guises, making for (as its website puts it) "a collective voice of the trial bar on Capitol Hill and in courthouses across the nation".

The AAJ's annual conference is attended by trial lawyers of every hue. There are seminars for trucking litigation lawyers, for those specialising in chiropractic malpractice litigation, birth trauma litigation and various kinds of pharmaceutical litigation. There all manner of other lectures and talks, all of which enable the open exchange of information and cutting edge know-how. I felt it was important to get a sense of how American lawyers deal with the kinds of issue that Spencers Solicitors handle, and so booked myself in for the four day conference.

The experience has been illuminating and when time allows I may write in more detail about it. For now, though, I will observe that two truisms seem to apply to the legal world on both sides of the atlantic.

Firstly, claimant lawyers are engaged in an adversarial battle with insurers. The latter subject to a minority exceptions seem to seek to minimise their liability at every stage, rather than remembering that without the people who take out their policies they wouldn't be in business. If only, as I have often argued in this blog, there could be a more constructive dialogue between insurers and claimant lawyers - if only a more holistic approach could be taken to the question of a victim's right to compensation - much time, cost and anxiety would be saved.

Secondly, claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover. While there may be merit in this in some ways, it cannot be right if the effect is to jeopardise a victim's ability to secure compensation to which he or she is rightfully entitled.

A final, more tangential observation is that it's true: American lawyers really are more theatrical than their British counterparts. They certainly don't lack for confidence and character. Last night, for example, my daughter Esme (who is accompanying me on the trip) booked us into Buddy Guy's Legends club. This is one of the most famous blues clubs in the world, and we had a fantastic evening watching brilliant musicians like Eric 'Guitar' Davis and Corey Dennison. As the evening wended on I found myself talking to a chap at our  table. He was confident and charismatic - and turned out to be an appeal judge from North Carolina.

Somehow, one doesn't seem to meet Court of Appeal judges in Ronnie Scott's club in the heart of the West End. That's not to say they don't like jazz - in fact, I suspect quite a few of them do - but it is to say that they'd be hesitant about striking up a conversation with a complete stranger. Not so in America, and tonight Esme is taking me to another blues club. I'll be surprised if any lawyers who happen to be there are backward about coming forward.

Wednesday, 25 July 2012

Britain’s dock workers shouldn’t have to rely on a Brando figure

Of all manual labour jobs, working in a dockyard might be the hardest. I say this because a friend once spent a summer working in Exmouth docks in Devon. He was exhausted by the end of every day. Sometimes his hands and wrists were cut by what he was unloading – he especially he hated fertiliser bags. But there was no alternative; my friend couldn’t just stop and invoke health and safety legislation. It was a case of either getting on with whatever he had to do, without complaint, or losing his job.

That was some 25 years ago. Society has come a long way since, and Britain stands proud as having the best health and safety at work record in Europe. Employers no longer resent provisions in legislation such as the Healthy and Safety at Work Act 1974. The majority now accept that they have a duty of care to look after, as far as possible, their employees’ health, safety and welfare while they are at work. For all that the tabloids sometimes assert that this means that it’s impossible to change a light bulb without performing a risk assessment, there’s an undeniable upside: our working environments are, for the most part, safe places to be.

It’s with some concern, then, that I read about proposals by the Health and Safety Executive (HSE) to axe rules which are specific to dockyards. There is more about this on the website of the Association of Personal Injury Lawyers. In a nutshell, the HSE proposes that regulations which are specific to dockyards, such as ensuring ladders are in place as a means of escape if workers fall into the water, are to be scrapped and replaced with ‘guidance’.

The measure is in keeping with the present government’s obsession with cutting red tape. I object to red tape as much as the next man – if it’s unnecessary and counter-productive. But I’m very worried when I see ‘red tape’ being cut in a dangerous working environment like a dockyard. The words of APIL president Karl Tonks are salutary: “Five times more dock workers die than the national average for workplace deaths so the last thing the port industry needs is weaker safety measures.”

It’s impossible not to agree. Working in a dockyard is tough enough without stripping workers of much-needed health and safety protection. As ever, what is required is a full and considered appraisal of existing rules and regulations and a holistic approach to whether they work or not. I very much doubt that this has been undertaken; once again, it seems as if the government is looking for sound bites in the tabloids rather than properly assessing a given situation.

In 1954, years before my friend had his summer stint in Exmouth docks, Elia Kazan’s On The Waterfront was released. The film chronicled corruption in New Jersey’s dockyards, with former boxer Marlon Brando famously taking on the mob boss, and winning. Great though it is, On The Waterfront depicts a lost era, one in which health and safety at work was as fanciful as rain in a desert.

We’ve come a long way since. What we don’t want is our dock workers having to rely on a Brando figure to secure their rights. I urge a rethink of the HSE proposals and due consideration of whether their implementation might not ultimately have tragic consequences.

Thursday, 19 July 2012

The White Paper on Social Care: we mustn’t let it turn into a missed opportunity

Recently I wrote about John Burns, whose battle to secure continuing healthcare in his own home gave me cause for considerable concern. For those who may not have seen my previous piece, Mr Burns suffered a tragic water sports accident which left him paralysed and without sensation from the neck down. But at the very time when he most needed the support and infrastructure of family life, he was forced, through lack of any alternative, to live in institutional care. Understandably, Mr Burns regarded this as akin to prison. He missed anniversary celebrations and seeing his sons grow up, and all the up and downs that make a family so special.

I was fortunate to hear Mr Burns speak at the AGM of the All Party Parliamentary Group on Spinal Cord Injury, held at Portcullis House. He brought his audience to the brink of tears as he so spoke so courageously. I left feeling profoundly moved, and determined to try to raise the profile of people in Mr Burns’ position.

With this in mind I applaud the publication of a white paper on the future of social care, published last week along with a draft social care Bill. As a press release from the Law Society has it, this amounts to “a rare opportunity to unify and modernise existing legislation which must not be wasted.” Law Society President Lucy Scott-Moncrieff  states: “Simplifying and unifying a mass of existing statute is an arduous and complex exercise.  The aim must be to improve the experience of those requiring care.”

The publication of the white paper comes against a backdrop of reduced spending on social care, a society whose citizens are living longer and a need for clarity on how the system will be funded in future. But does it do enough to help seriously injured people?

I will be taking a look at both the white paper and the draft Bill in detail to find out, but one thing strikes me as dubious at the outset. It is envisaged that elderly people in need of care will be able to take out loans on the value of their homes, repayment of which will be deferred until their death. Therefore people will not be forced to sell their homes to obtain care, but is it right that the family inheritance is potentially eradicated in this fashion?

I don’t think it is. I believe that as a society we are guilty of failing to respect those in need of care properly, whether they are the elderly or those unfortunate enough to suffer a serious and debilitating injury. At present, costs are pushed back and forth between local authorities and the NHS – a problem the white paper seeks to deal with by proposing greater integration – but as a starting point surely we should be accepting that society has a duty to meet the costs of care? After all, those who need care have paid their taxes and, in all but a tiny minority of cases, they have contributed to the wellbeing of their communities and the economy of the nation. Why does government, past and present, assume the default position that it is the individual’s responsibility to pay for care?

I will return to this topic in the future but, for now, I am not convinced that those suffering catestrophic injury  would be impressed or relieved by the content of this white paper.  Let’s make sure it doesn’t end up being a missed opportunity. 

Wednesday, 11 July 2012

Ex Turpi Causa in RTA Cases: about as clear as mud

Should a thief who is injured in the course of a burglary be able to sue a house-owner if, say, a creaking and rotten floorboard collapsed as he was tiptoeing around the house, causing him to fall and break his arm?

Many of us will unhesitatingly say ‘no, of course not’. Others might go further and say that if the home-owner went on to injure the burglar, rather than help him, he should not, in law, be liable. After all, as the tabloid press like to remind us, an Englishman’s home is his castle.

But what of a burglar injured by the negligent driving of a co-conspirator while making a getaway? This scenario was recently before the court in the case of Joyce v O’Brien and Tradex. Mr O’Brien stole a pair of ladders from the front garden of a house and put them in the back of a Ford Transit van. He sped off, with his nephew (Mr Joyce) standing on a footplate at the rear of the van, holding onto the ladders. Having careered around a couple of corners, Joyce lost his grip, fell and sustained a serious head injury.

Joyce went to law.  He argued that O’Brien’s insurer, Tradex, should pay him compensation, which raised an interesting point of law: given that both men were engaged in a joint criminal enterprise, did the ex turpi causa principle apply? Latin scholars will recall the maxim in full – it is ‘ex turpi causa non oritur actio’. In plain English, it means one cannot seek redress where one has first acted dishonourably. 

The court held that Joyce’s injuries were caused not just by O’Brien’s driving but by his nephew’s precarious position on the footplate, where he was attempting to secure the ladder as well as himself. There was therefore a causation problem with Joyce’s claim, but it also failed as a matter of general public policy. As Richard Lynagh QC and Suzanne Chalmers, who represented Tradex, have it here: “a participant in a joint enterprise of theft which involves dangerous driving in order to escape the scene cannot recover for injuries suffered in the course of that enterprise.” Moreover, a driver could not owe a duty of care to his co-conspirator in a joint enterprise of theft.

The case is interesting in its own right, and it put me in mind of two recent Court of Appeal decisions. The first is Churchill Insurance v Wilkinson [2010]. Here, the passengers, who were insured, allowed an uninsured driver behind the wheel. The second case is Delaney v Pickett, heard in 2011. This case involved a reckless driver who was found to be a habitual cannabis user who was convicted of dangerous driving. In both cases, the insurers argued that the accident victims had breached their policy terms and were therefore not entitled to compensation.

There is an important backdrop to both cases – section 158 (1) of the Road Traffic Act, which gives an insurer the right to recover any outlay from their insured where their insured has allowed the use of a vehicle by an uninsured driver. There is also a related case, namely Cockayne v Evans, in which Ms Evans gave permission to Adam Cockayne to drive her motorcycle without giving any thought to whether he was insured or not (he wasn’t).

Taken as a whole, the three cases are complicated. The facts differ in each, and it would be inappropriate to rehearse them all here. However, suffice to say that Wilkinson V Churchill ultimately went to the European Court of Justice, which decided that section 151 (8) does not accord with European Directives on the harmonisation of motor insurance. In other words, it cannot operate to prevent a claimant from a right of entitlement to damages, where the claimant is a victim, albeit that the claimant permitted the use of a vehicle by an uninsured person.

Despite this, the Court of Appeal decided not to consider the Wilkinson case when it came to decide the Delaney v Pickett appeal. This, too, visited ex turpi causa territory, because the vehicle being driven was being used to buy and then resell cannabis. The Court of Appeal opted to treat the claim as an uninsured driver claim pursuant to section 143 of the RTA (which governs Motor Insurance Bureau claims) but concluded that it could be legitimately excluded.

Confused? Don’t worry – everyone in the PI sector is too. The bottom line is that while each case should be treated on its own facts, there is an absence of congruity between domestic law and European Directives on motor insurance. Watch this space: just as thieves will continue to bungle their getaways, it’s a certainty that the law here will soon be tested again at ECJ level.

Wednesday, 4 July 2012

Pain: all in the mind?

The Supreme Court’s recent judgment in Fairclough Homes Ltd v Summers has been described as “disappointing” to insurers. See, for example, this article from Insurance Insight. The ruling in the Summers case is being billed as a blow to the insurance industry’s fight against insurance fraud.

But before the usual suspects clamber aboard the bandwagon and start lamenting Britain’s ‘compensation culture’, it’s worth taking a look at the facts of the case and generating debate about a key facet of personal injury law: the nature of pain.

Mr Summers suffered an injury at work in May 2003. It was a serious injury, described in the Supreme Court’s summary as being “serious fractures which required at least two operations”. Summers sued, and submitted a schedule of loss. It claimed damages of £838,616 including a claim for loss of earnings up to October 2008.

However, between October 2007 and September 2008 the Appellant subjected Summers to undercover surveillance. The result was to reveal that he was exaggerating the effect of his injuries and his incapacity for work.

Ultimately, the court held that Summers was entitled to compensation for loss of earnings for the period from the date of the accident to 30 June 2007. The judge also awarded general damages of £18,500 and damages for additional care and assistance. The total award was £88,716.76.

Fairclough Homes’ insurer (Zurich) appealed, contending that the entire claim should be struck out because it was “substantially fraudulent”. Ultimately, the matter came before the Supreme Court in April, and judgment was handed down at the end of June. The Supreme Court allowed Summers to hold onto the £88,716.76, albeit that it concluded that it did have jurisdiction to strike out the claim as an abuse of process.

This issue, as a matter of law, was delicate, given the authority of the Court of Appeal case Ul-Haq v Shah. This case established that there is an invariable rule that a person cannot be deprived of a judgment for damages to which he is otherwise entitled on the ground that he is guilty of an abuse of process. The principles in Ul-Haq were restated by the Court of Appeal in Widlake v BAA. However, the Supreme Court found that the Civil Procedure Rules countervailed this, albeit that “as a matter of principle the court should only exercise this power [to strike out as an abuse of process] in very exceptional circumstances”.

Those circumstances were evidently not met in Fairclough v Summers, but the case raises an important tangential issue, namely: how do we measure pain? I make no comment on the facts of Summers, but I have encountered many cases over the years in which the claimant’s perception of pain differs widely from that which objective analysis might conclude to be reasonable.

The point, when it comes to assessing compensation for pain and suffering, is that a range of factors need to be considered. There is the question of physical trauma and its extent, which the medical profession describes as ‘biomedicial’ or ‘biophysical’ factors. Then there are psychological factors. These may include a person’s character, past experience, mood, attitude to life and beliefs.

Then there is what is known as ‘pain behaviour’. This is what a person does in response to pain. Some people take themselves to a doctor if they twist an ankle; others ignore it and soldier on. Pain behaviour is also a product of psychological and environmental conditioning.

There are so many complex variables when it comes to pain and trauma that it is impossible to adopt a ‘one size fits all’ remedy. What is crucial is that the courts and insurers understand that a claimant may appear to exaggerate symptoms, when compared to someone else who suffered the same injury, but that the exaggeration may be wholly honest. In other words, it is the individual claimant’s response to the accident that matters.

In the Summers case there was clearly an element of malingering and dishonest exaggeration. But rather than lamenting the Supreme Court’s ruling as injurious to the insurance industry, we should instead take the opportunity to debate how best to ensure that each victim is compensated for pain – remembering that one person’s stiff upper lip is another’s trip to hospital.