“Play on, play on. Pretend it didn’t happen”, the tag rugby referee insists, as that week’s newbie makes a blatantly forward pass. Outraged that they aren’t allowed their own free pass (pardon the pun), experienced players often question why referees are so lenient with players new to rugby. Why aren’t they held to the same standard? The recent High Court decision of Czernuszka v King [2023] EWHC 380 (KB) appears to answer that question.

Facts

On 8 October 2017, the claimant, Dani Czernuszka, was left paraplegic and wheelchair-dependent following a spinal injury sustained in her first competitive rugby game. She alleged negligence against the defendant, Natasha King, who tackled her.

The claimant, playing as an openside flanker, filled in for the scrum half at a ruck that had formed. The claimant was bent at the waist with her head and neck exposed. Upon the ball bobbling out of the ruck, the defendant came round the side of what was the ruck and appeared to place her bodyweight onto the claimant’s back. The claimant’s legs were out in front of her, whilst the defendant’s hands were on her legs.

Negligence

Mr Justice Spencer was persuaded by the claimant’s argument that the legal test to be applied was whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances, which was the same test endorsed in Condon v Basi [1985] 1 WLR 866. The Condon test provides that the defendant’s duty is “to exercise such degree of care as was appropriate in all the circumstances”. Paragraph 38 of the judgment outlined how, in Condon, the court observed that “the standard of care was objective, but objective in a different set of circumstances; thus there will be a higher degree of care required of a player in a first division football match than of a player in a local league match”.

The judge was not persuaded that there was a principle to follow in Blake v Galloway [2004] 1 WLR 2844, and instead found that there was no conflict between the Condon test and the Blake reasoning or decision. Blake concerned an injury sustained during horseplay between two 15-year-old boys, where the high standard established was that “there is a breach of the duty of care owed by participant A to participant B ‘only where A’s conduct amounts to recklessness or a very high degree of carelessness'”. The judge found that the Blake standard was not applicable in this case, as Blake was in the context of horseplay and not of sport.

Decision

Mr Justice Spencer found entirely against the defendant, save for one aspect mentioned at paragraph 61 of his judgment. He found that the defendant was not offside, and therefore was allowed to contest for the ball. However, the defendant “should have modified her conduct because it was or should have been apparent that the claimant was treating the situation as though there was still a ruck”. In essence, the defendant should have recognised that the claimant was not aware that the ball was out of the ruck. Instead, she should have allowed the claimant time to make a decision. This sets a precedent that in a developmental game such as this, any reasonable, regular rugby competitor should ‘go easy’ on newer players and not play the game with full force. They should not capitalise on a new player’s misunderstanding or inexperience.

The judge’s reasoning can be found at paragraphs 58(ix) and (x). There, he explained that the defendant’s manoeuvre was “obviously dangerous and liable to cause injury”, and that the tackle “was executed with reckless disregard for the claimant’s safety in a manner which was liable to cause injury and that the defendant was so angry by this time that she closed her eyes to the risk to which she was subjecting the claimant, a risk of injury which was clear and obvious”.

The standard expected of more regular players is shown at paragraph 29: “at this level of rugby, with the claimant bending over in the position of acting scrum-half as though the ball was still in the ruck, he [Mr Edward Morrison, an eminent retired referee and the claimant’s expert] maintained that the defendant would or should have known that the claimant was treating the ball as in the ruck, that she would be completely unaware that she was about to be tackled and in those circumstances, the defendant should not have persisted in tackling the claimant but should have desisted”. This highlights the greater care those familiar with the sport should exercise towards new players.

Going forward

It comes as no surprise that those with a higher level of experience must exercise a greater duty of care. A lot of this case turned on its particular facts, and much attention was paid to the defendant’s alleged conduct in a previous game and the game on 8 October 2017 prior to the injuring tackle.

If the incidents leading up to the tackle are stripped away, this is a simple case of a competitor playing on the edge of the rules of the game and being too eager to assert their physicality upon the other team. The facts leading up to the tackle itself do not add anything salient as to whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances. It is the tackle that is important, not whether the defendant swore at her opponents or tried to intimidate them.

The defendant’s alleged behaviour in the previous game raises the question of what ‘evidence’ should be admissible in sporting personal injury (PI) cases such as these. It could be argued that the defendant’s alleged previous conduct was not relevant in assessing whether she had failed to exercise such degree of care as was appropriate.

This is a seismic decision in that it is a first for the women’s game and sets a new precedent for sporting injury claims. The women’s game is expanding rapidly and this case hopefully assists clubs and players in safeguarding against similar injuries.

Sadly, this isn’t the first time a player has been paralysed as the result of a tackle, and it certainly won’t be the last. Meaningful change remains needed to the game’s tackle height laws, whilst referees need to exercise greater control over developmental games such as in this case to ensure safety of new players. If necessary, referees should consult both captains if a game threatens to boil over.

It is expected that the Rugby Football Union (RFU) will foot the damages in this case, as they insure all players at all levels through a mandatory scheme. The RFU will continue to pay for similar cases unless and until they set higher standards.

Christian Mills is an aspiring barrister currently studying the bar course at BPP University in Leeds.

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In 1915, the Autoped Company of America launched what the stunned cycling industry could only describe as a “freak vehicle”. First conceptually devised almost 100 years earlier by Baron Karl von Drais, they were referring to the forefather of today’s e-scooter. According to the Online Bike Museum, it was “essentially an enlarged child’s scooter with an engine mounted over the front wheel” that could travel at 20 mph (or apparently 35mph when pushed!).

In an America where urban traffic regulations were nascent (traffic lights were only installed in Cleveland in 1914 and in New York in 1918) and dangerous driving was rife, the e-scooter became a favourite amongst “groups of rowdy youths”. Although the scooters were eventually able to overcome the high price tags that had been a barrier to entry in the 1920s, new regulations eventually killed off the commercial viability of the product.

Their target market — those who generally had either little concern for or an inability (by virtue of their age) to comply with regulations in their pursuit of a cheap and easy method of transport — was wiped out by more burdensome compliance requirements (such as requiring users to have insurance and a driver’s licence). The motorised scooter industry had not anticipated the lethal potential of being treated like any other motorised vehicle by the law.

But almost a century since its explosion into the Wild West of developing traffic regulation, the scooter has returned under the fun and eco-friendly guise of the e-scooter. This has seen the e-scooter hit a wider audience and assert a stronger position amongst commuters than their motorised predecessors. The question now is how will the UK government approach the regulation of e-scooters? With government trials of e-scooters having been extended until 31 March 2022, there appear to be two key areas for consideration.

The first is whether to restrict access to e-scooters to certain rental operators or to allow private ownership. Limiting the use of e-scooters to rental providers such as Lime, Voi and Bolt (amongst others) has the advantage of increased control and accountability. Governments can regularly review the number of e-scooters these companies are allowed to operate and impose new restrictions which can be implemented with immediate effect. A good example of where this has happened has been in Scandinavia which is now leading the way with e-scooter regulations.

Since 2018, the cities of Oslo, Stockholm and Copenhagen have all seen a rapid rise in the number of e-scooter operators using this ‘free floating’ model, where e-scooters can be picked up and dropped off anywhere in the city. In 2021, there were 200 e-scooters per 10,000 residents in Oslo — the highest concentration per capita in the world. This untamed growth that is vital in order not to be swallowed up by their bottom line led to a “jungle” of inconveniently parked scooters and a host of headline-grabbing and hospital-burdening injuries.

Now these operators have felt the full force of effective regulatory whiplash. In July 2021, Oslo capped the number of e-scooters at 8,000. In October 2020, Copenhagen banned 13 e-scooter operators altogether, only readmitting a handful a year later on tougher terms including parking restrictions and off-limits zones. These measures would not have been nearly as effective in a location where e-scooters are predominantly privately owned.

The second key issue for consideration is whether the law should treat e-scooters like a bicycle or motor vehicle. Ever since the bike (specifically the Penny Farthing) shed its reputation as a dangerous method of travel in the 19th century, the pedal-bicycle’s popularity and alignment with policy objectives has led to little regulation for cyclists. Unlike for motorised vehicles, you do not need a licence or insurance to ride a bike.

Interestingly, electric bikes (a close cousin to the e-scooter) have been treated more like a bicycle than a motorised vehicle. Electrically assisted pedal cycles (EAPC) are classed as normal pedal bikes provided they cannot travel at more than 15.5mph. Yet for the purposes of the UK’s current trials, e-scooters are considered motorised vehicles.

Whether the same logic behind e-bikes’ classification will be applied to e-scooters largely depends on public sentiment. Will the growing list of e-scooter accidents and deaths sway the tide in favour of more stringent regulation? The UK has already had its fair share of e-scooter tragedies from YouTuber Emily Hartidge’s death as the first recorded fatality to a three-year old girl left with life-changing injuries after a collision in July.

Whatever the direction of these debates, one cannot ignore the issues around insurance. Given their current status as motorised vehicles, those injured by an e-scooter have a distinct advantage over those injured by an e-bike: the Motor Insurers’ Bureau (MIB) will compensate successful claimants for injuries caused at the hands of an uninsured e-scooter rider. This is not the case for EAPCs where insurance is not compulsory.

Going down the same route as e-bikes therefore might not be wise given the popularity of e-scooters amongst those who are unlikely to have insurance. Moreover, since unregistered e-scooters lend themselves to hit-and-run cases, the absence of the MIB, who investigate such claims for free, adds to concerns that victims will be left vulnerable.

And yet further peril may await! The UK government is planning to overturn a Court of Justice of the European Union ruling Damijan Vnuk v Zavarovalnica Triglav d.d. (that was confirmed by the Court of Appeal in MIB v Lewis) which in effect forces the MIB to compensate victims of uninsured motor accidents that occurred on private land. This gap would leave a portion of victims (namely those injured on private land) in the same uncertain position as victims of uninsured e-bike accidents.

Despite the strengths of the case for regulation, we must remember what happened to the scooter in the 1930s. If it is committed to a revival of the e-scooter, the government will have to astutely judge the manner and form of new regulation with the hope that it will not kill the e-scooter again.

Will Holmes is a future trainee solicitor at a magic circle law firm.

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As the NHS is under mounting strain with the coronavirus disease showing little to no sign of abating, another disease seems to have plagued the health sector: clinical negligence claims. Is giving the NHS staff a dose of immunity against these claims the cure to this problem?

There is no denying that COVID-19 has been the biggest challenge that the NHS has had to face in its 72-year history. Final year medical students and retired healthcare workers have been called to the NHS frontline. Healthcare professionals have been pulled from pillar to post, speedily retrained and redeployed to unfamiliar settings and specialities. They have all admirably risen to work around the clock and make personal sacrifices to treat the increasing number of COVID-19 patients. With clinicians performing procedures outside their usual expertise, patients being inadvertently exposed to the disease, attendant delays in screenings, diagnostics and treatment of other non-coronavirus illnesses, the concern about the rise of negligence claims is very real at the moment.

Arrangements are in place to cover clinical negligence liabilities though the state indemnity scheme Clinical Negligence Scheme for Trusts (CNST). To ensure there are no gaps in this indemnity coverage, with the new powers from the Coronavirus Act 2020, NHS Resolution has also launched a new scheme to provide additional cover for services directly related to COVID-19 and for any backfill arrangements that may be needed. Whilst the Coronavirus Act ensures that redeployed health workers are indemnified, our starting point remains the same: the common law test for clinal negligence. However, there have been concerning demands to neglect the test entirely.

What is the traditional test for negligence?

For a claimant to make a successful medical negligence claim, he or she must show a duty of care that needs to have been breached and causation which flows from that breach to the loss/harm suffered.

What do we mean by a breach of duty?

The healthcare professional must have acted in a way which fell short of acceptable professional standards. This standard of care is determined by the test found in Bolam v Friern Hospital Management Committee (1957), according to which a medical professional is not guilty of negligence if he or she “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. This is an objective test. In carrying out this assessment of reasonableness, the court can and should have regard to the circumstances in which the clinician is operating. However, it has been made clear that there are no concessions for a lack of relevant experience; one standard is expected from all those who occupy a certain post. This has been recently reiterated by Jackson LJ in FB v Princess Alexandra Hospital NHS Trust (2017). This point is of particular relevance today given the increasingly broad spectrum of frontline recruits at the moment; a trust deploying a fresh-faced junior doctor to duties for which they are not sufficiently skilled would have to bear the risk of negligence claims.

What is causation?

It must then be shown, on the balance of probabilities, that the harm the claimant suffered is directly linked with the health professional’s failure to meet the reasonable standard of care.

The calls for immunity

In response to the rising trends of COVID-19 clinical negligence claims, the Medical Defence Union (MDU) has called for a public debate on whether to grant immunity to NHS staff. The MDU points out how these claims are a troubling drain on NHS resources which would be better spent focused on the COVID-19 recovery. It also acknowledges the emotional and professional burden of dealing with clinical negligence claims and what this would mean for NHS staff morale. Given the typical lapse between the time when the harm or incident occurs and when claims are actually made, the MDU chief executive Dr Christine Tomkins expressed her concern that claims will only arise “long after public memory of the sacrifices made by healthcare workers have been forgotten”. These are important anxieties but to grant immunity against negligence claims is not the way to go.

The problems with immunity

The task of implementing staff immunity is also likely to be extremely difficult in practice, giving rise to many complex questions.

First, is immunity to apply to every grade of staff or only to certain sections? In the latter case, there is a real risk that it will polarise and demoralise a workforce. Second, how far do we stretch this immunity? Would it only extend to the staff treating COVID-19 patients or would it also extend to harm caused to indirectly affected patients such as those suffering complications due to delays in routine operations or cancer patients experiencing delay to their chemotherapy treatment? Therefore, the difficult question of causation would still be very much in play. Third, over what time period would this immunity apply? Would it apply retrospectively, for example, from the date when the first lockdown was imposed or when the first COVID-19 patients arrived at hospitals for treatment? Fourth, should this immunity take account of regional variances in the spread of the virus? These are just some of the many questions that such a drastic measure would prompt.

Another concerning issue is that to completely shield the NHS staff from clinical negligence claims would fully strip patients of their entitlement to proper care and also curtail their right to redress in the event that they do not receive such care. It would become a problematic issue of human rights. To uphold the MDU’s call for immunity would only send a worrying message about medical practice standards.

Immunity also does not seem necessary. The courts appear to have demonstrated some flexibility when explaining the Bolam standard of care, specifically with regards to unprecedented circumstances. For example, in Wilsher v Essex Area Health Authority (1988), Mustill LJ accepted that the standard of care owed by medical practitioners might be affected by “battle conditions”. In his comment, albeit obiter, he highlighted that where an emergency overburdens a hospital’s resources and doctors are forced to “do too many things at once”, their actions should not lightly be held to be negligent. It has received support more recently in Mulholland v Medway NHS Foundation Trust (2015). These considerations given to the reality of working in emergencies could be promising for NHS staff and may be tested by the courts in the years following this crisis.

Promoting a learning culture — no blame, more gain

Medical negligence litigation has always been a contentious area of law, and that is not going to disappear anytime soon. In these extraordinary circumstances, it is inevitable that mistakes will be made. Jackson LJ’s parting comments in FB are particularly prescient: “Doctors, however, are human… Those who have learnt from past mistakes often have even more to offer”. The opportunity should be taken to shift the culture within the NHS away from blame and towards learning from errors. Giving blanket immunity to the healthcare staff would completely defeat this aim to build a culture of trust and learning.

Instead of tampering with the grounded rules of tort law, the focus should be on the inherent flexibility in the standard of care recognised by the courts, where the current context could give some breathing room to overburdened medical practitioners. It will be a matter of waiting to see if the common law, along with the state-backed indemnity arrangements, has sufficiently armed the NHS so that it can endure the “battle conditions” it finds itself in.

Yanusika Srithar is in the penultimate year of her law with French law degree at UCL. She aspires to become a solicitor.

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“The modern law of privacy is not concerned solely with information or ‘secrets’: it is also concerned importantly with intrusion.”

— Mr Justice Eady, CTB v News Group Newpapers Ltd & Anor [2011]

Following the news that Meghan Markle’s privacy claim against Associated Newspapers Limited (ANL) has been adjourned to autumn 2021, now is the perfect time to consider her causes of action and chances of success. Any defences ANL may have are also discussed here. Finally, while the trial originally listed for January 2021 has been vacated, Mr Justice Warby did grant permission for Markle to make a summary judgment application in its place. The test for summary judgment will be considered below along with the chances of the application being successful.

The facts

Markle’s claim against ANL concerns the publication of five articles, three in the MailOnline and two in the Mail on Sunday in February 2019; ANL being their parent company. The articles disclosed excerpts of what Markle calls a “private and confidential” letter sent to her estranged father in August 2018.

While there are various rights which can be utilised, there are three underlying causes of action in this case:

1. Misuse of private information;
2. Breach of duty under the General Data Protection Regulation (EU) 2016/679 (GDPR) and the Data Protection Act 2018 (DPA 2018); and
3. Copyright infringement.

Markle had previously made allegations of dishonesty and other misconduct on the part of ANL; however, these allegations were struck out in May 2020 as they were found not to be adequately particularised and irrelevant to the pleaded causes of action. Markle was also ordered to pay ANL’s legal costs of £67,888 for that hearing along with her own costs.

Misuse of private information

Privacy law, unlike many other areas of media and information law, is not governed by statute. Instead, the law in this area has developed over the last 15 years through case law.

The leading case in this area is Campbell v Mirror Group Newspapers Ltd [2004]. Campbell established that a claim could be brought under Article 8 ECHR (Right to Privacy) and led to the establishment of ‘misuse of private information’. Misuse of private information has now been confirmed as a tort in its own right and can now be regarded as having two core components:

1. Unwanted access to private information (confidentiality component); and
2. Unwanted intrusion into one’s personal life (intrusion component).

Markle would only have to successfully argue that one of these two components has arisen to be successful in her claim. The effect of the intrusion component is significant as, if ANL can establish that the content of the letter was already in the public domain, thereby dealing with confidentiality, her claim can still be successful if she did have a reasonable expectation to privacy in the circumstances.

In addition to showing that the letter was in the public domain, ANL would also seek to establish Markle as a ‘public figure’, being a member of the Royal Family. Therefore, it was in the public interest that the letter was published. However, RocknRoll v News Group Newspapers Ltd [2013] confirmed that a reasonable expectation of privacy is not necessarily diminished because the individual is a public figure.

Ultimately, all these factors will be incorporated into a balancing exercise between the competing rights to privacy and freedom of expression under Articles 8 and 10 of ECHR.

Breaches of GDPR

Protection of personal information received a dramatic overhaul in 2018 with the introduction of GDPR and the DPA 2018. GDPR and the DPA 2018 must be read together and impose broad obligations on those who collect personal data, as well as protects individuals whose data is collected.

As the new law is still in its infancy, it remains untested by the courts in connection with privacy law. However, the now-repealed Data Protection Act 1998 was often used as an alternative cause of action in privacy claims (See Vidal-Hall v Google Inc [2015]).

Markle claims that the information contained within the letter constitutes ‘personal data’ within the meaning of the Regulations. Failure by ANL to acquire Markle’s consent has led to that data being unlawfully and unfairly processed, which is in breach of Article 5(1)(a) of the Regulations.

ANL will likely seek to rely on the journalism exception. In the interest of preserving freedom of expression, the journalism exception is provided for by paragraph 26 of Part 5 to Schedule 2 of the DPA 2018 and applies to the GDPR. Once again, it would be necessary for ANL to show that the publication was in the public interest.

Copyright infringement

Copyright laws in the UK are governed by the Copyright, Designs and Patents Act 1988 (The 1988 Act). The 1998 Act protects a wide range of works, from artistic works to databases. Importantly, the 1998 Act also protects “literary works” which includes protection of private letters.

The 1998 Act confirms that copyright arises from the creation of the work and subsists in its author (i.e. Markle) not in the recipient of the letter, her father. As such, Markle controls the reproduction of the letter; with any publishing of the letter requiring her consent.

Copyright infringement occurs when certain prohibited acts (outlined at sections 16-21 of the 1988 Act) are carried out without the permission of the author. ANL appears to have carried out the following prohibited acts:

• Copying the work;
• Issuing copies to the public;
• Communicating the work to the public; and
• Making adaptations of the work.

It is clear that these acts, subject to any defence from ANL, would amount to copyright infringement.

There are certain circumstances where a third party can use copyrighted works without the permission of the author. The most pertinent in this case is for the purposes of criticism, quotation or review (section 30 of the 1998 Act). However, ANL will likely seek to rely on the fair dealing exception. When considering fair dealing, the court’s main issue would be to determine whether the publication of the extracts was “fair”. The courts will look at a variety of factors including whether the contents of the letter were already in the public domain at the time of publication. ANL will seek to rely on interviews given by friends of Markle’s to an American magazine in which they allegedly talk about the letter and its contents. Markle states that this is incorrect and even if they did, they did not have her permission to do so. Ultimately, we return to the need for ANL to show that there is a legitimate public interest in the letter. If ANL can prove this, the claim will likely be dismissed. However, it must be noted that just because something can be deemed to be of interest to the public, does not mean it is in the “public interest” and they, therefore, need to know it.

Summary judgment

As mentioned above, permission has been granted for Markle to make a summary judgment application in January 2021.

The test for summary judgment is outlined in Part 24.2 of the Civil Procedure Rules (CPR) and states the following:

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if:

(a) it considers that–

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

As Markle would be making the application, the burden would be on her legal team, now headed by Justin Rushbrook QC of 5RB, to show that the defendant has no real prospect of defending the claim and that there is no other reason for a trial. In doing this, the court will not conduct a mini-trial (Swain v Hillman & Anor [2001]) but instead, look at the strength of each party’s case. Should ANL show that their case is “realistic” as opposed to merely arguable, then the application would be dismissed, and the case would proceed to trial. It is also entirely plausible that any summary judgment application could be dismissed, only for ANL to then lose at trial.

It would not be the first time a member of the Royal Family had been successful in obtaining summary judgment against ANL. In 2006, Prince Charles was granted summary judgment following the publication of contents of a journal describing the handover of Hong Kong in 1997. On appeal, Lord Phillips found that there had been clear breaches of copyright and confidence.

It would appear ANL has not learned their lesson following their defeat in 2006. Despite this, there is a clear difference between the Duchess of Sussex’s case and the Prince of Wales’ case which suggests that Markle’s copyright claim is stronger. Prince Charles’ journal was connected with his official duties as a “public figure”, whereas Markle’s letter was likely a private and personal piece of information.

Conclusion

A successful summary judgment application would almost certainly bring these proceedings to a close, pending any appeal by ANL. There is every chance that an application could be successful, with Markle relying on Prince Charles’ case in support. Although this outcome would likely derive the public of what would be the most significant privacy claim to date.

It appears that Markle has a strong chance of success across all causes of action. However, the issues in the case will likely revolve around ANL’s defence and the classic balancing act of Articles 8 and 10 ECHR. Should Markle be successful, it is unlikely ANL, and the media as a whole will stop skirting the edge of what are acceptable practices. It appears a case of not if, but when will another high-profile privacy case emerge. Only time will tell.

Benjamin Ramsey is a first class law graduate from Northumbria University. He completed the BPTC as part of his degree and was called to the bar in 2018. He currently works as a county court advocate for LPC Law, and is actively seeking pupillage.

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On 2 November 2020, Hollywood megastar Johnny Depp’s libel claim against The Sun newspaper was dismissed by the High Court. While Mr Justice Nicol found that Depp had proved the necessary elements for an action in libel, The Sun had also proved that what they had published was “substantially true”.

An exploration of the relevant law surrounding this case is provided here, along with a comparison to American defamation laws. I will also consider the fairness of the article published and its relevance to the decision. Finally, I will look at what is next, if indeed anything, for the former Pirates of the Caribbean star.

The law

The legal issues within the case are straightforward.

Depp brought the libel action under Section 1(1) of the Defamation Act 2013. This claim followed the publication of an article on 27 April 2018 on The Sun newspapers’ website with the headline, ‘GONE POTTY How can JK Rowling be ‘genuinely happy casting wife beater Johnny Depp in the new Fantastic Beasts film?’. The author of the article was also a party to proceedings as the second defendant.

Depp’s legal team, headed by Eleanor Laws QC of QEB Hollis Whiteman, claimed that the term ‘wife beater’ was untrue and would cause the actor’s personal and professional reputation ‘serious harm’. The Sun meanwhile, whose legal team was headed by Sasha Wass QC of 6KBW, utilised the ‘truth defence’ as defined in Section 2 of the 2013 Act.

Section 2(1) of the 2013 Act states the following: “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.”

What is important to take from the above is that it was for the defendant, namely The Sun, to prove that the statement made in the article was “substantially true”. Under English law, therefore, there is a presumption that the statement made is false. So, while the burden of proof rested on Depp to prove his reputation had suffered serious harm, that burden was reversed to show that the statement made was true. Both parties had to prove the elements to the civil standard, that being on the balance of probabilities i.e. in the case of The Sun, it is more probable than not that Depp did what is alleged in the article.

Some would argue, that placing the burden on the defendant to prove the statement hinders Article 10 of the European Convention on Human Rights, which guarantees the right to expression. I do not intend to delve into that here but it does raise the question whether the current defamation legislation strikes the right balance between the rights of newspapers to have sufficient freedom to engage in journalistic practices and the right of private citizens not to suffer unwarranted interference (Article 8: Right to privacy and family life).

The UK’s so-called pro-claimant approach is in direct contrast with American defamation law, which is largely pro-defendant. In America, they believe the right to free expression, which is entrenched in the First Amendment of the American Constitution, is more important than compensating claimants for harm caused by defamatory statements. As such, in the US, there is no presumption that the statement made is false. Rather, it is for the claimant to prove that the statement is false. Therefore, had this case been brought in America, it would have been for Depp to prove that The Sun had been negligent as to the falsity of the defamatory statement. Whether that would have meant a different outcome for Depp is a different matter entirely.

The decision

Ultimately, ruling in Depp II v News Group Newspaper Ltd [2020] EWHC 2911 (QB), Mr Justice Nicol found that while the statement of ‘wife beater’ would cause serious harm to Depp’s reputation, a fact accepted by The Sun‘s legal team in closing submissions, it was also found on the balance of probabilities that such a statement was true. Of the 14 incidents of physical violence alleged against then-wife Amber Heard, 12 of them had been proved to the civil standard. For the two incidents which could not be proven, the judge noted this was due to certain facts not being put to Depp during cross-examination. Further, the judge rejected Depp’s case that this was all hoax concocted by Heard finding that she had not been physically violent towards Depp.

Is the article as a whole a fair reflection of the situation?

Whether the statement, or indeed the article as a whole, is a fair reflection of events is immaterial to the truth defence. All Mr Justice Nicol was concerned about was whether the term ‘wife beater’ was substantially true or not. It was accepted by both parties that such a term meant the following:

i) The claimant had committed physical violence against Heard;
ii) This had caused her to suffer significant injury; and
iii) On occasion it caused Heard to fear for her life.

Therefore, provided The Sun could prove to the civil standard that Depp had been physically violent toward Heard on at least one of the 14 occasions regardless of the context of the violence or whether she had been violent also, the statement would still be “substantially true”.

Many news outlets depicted this case as Johnny Depp v Amber Heard; however, Heard was only ever a witness for The Sun. She was there solely to prove that the statement was true. While Depp had gone all in to prove his innocence in what could be one of the biggest missteps of his already patchy career.

To conclude, neither Depp nor Heard has come out of this highly publicised trial in good shape, even if no finding of physical violence were made against Heard.

Arguably, Depp’s pursuit of this case was ill-advised. The case placed the depths of a personal life, fraught with excessive alcohol and drug abuse, in full view of the public over three long weeks. The alternative was to simply dismiss the article as tabloid rubbish. Instead, Depp has been legally termed a ‘wife beater’ albeit to the civil standard. This result will serve as a stark reminder to those who believe that they have a cause of action but actually bringing the claim may cause more harm than good.

Next steps

It will be interesting to see where this case progresses. Depp’s legal team have called the judgment “perverse and bewildering” and indicated that he will be seeking permission to appeal.

The relevant test is outlined in Part 52.6 of the Civil Procedure Rules (CPR). It states the following:

(1) Except where rule 52.7 applies, permission to appeal may be given only where–
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.

While at first glance the test appears wide, it is difficult to see how Depp would be successful and what an appeal would achieve. Mr Justice Nicol’s judgment is extensive and involves various findings of fact against Depp across those 14 incidents. The judge made those findings having had the advantage of numerous witnesses giving live evidence. Any appeal hearing, should permission even be granted, would not be a rehearing of the case and would most likely be submission-based only.

This case revolved around the issue of fact, with the judge having to decide which versions of events were more credible. The judge sided with Heard. Any appeal court would place significant weight on the judge’s discretion in the case, with him being more familiar with the evidence than any appeal court would be.

Dragging this case out would only seek to further damage Depp’s reputation with little positives to achieve. He would have to show that the 12 findings of fact that he was physically violent towards Heard were incorrect for his claim to be successful on appeal.

Despite this, the war between Depp and Heard wages on in the US with Depp bringing a further defamation claim against Heard directly for $50 million. It will be interesting to see if the different approach in the US, which poses different questions to that of the 2013 Act, will throw up a different outcome. Further to that, following the imposition of the SPEECH Act 2010, American courts no longer recognise, nor enforce, foreign judgments for libel obtained under laws which do not afford as much protection for freedom of speech as that of the First Amendment. It appears then, that while this judgment may be persuasive to the American courts, Depp and Heard appear destined to do this all over again and I for one will be watching.

Benjamin Ramsey is a first class law graduate from Northumbria University. He completed the BPTC as part of his degree and was called to the bar in 2018. He currently works as a county court advocate for LPC Law, and is actively seeking pupillage.

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On 23 June 2020, news broke that Rebekah Vardy had issued a libel claim in the High Court against Coleen Rooney relating to a statement Rooney made on her Twitter account accusing Vardy of leaking stories about her to the tabloid press.

News of Vardy’s decision to launch a legal claim has provided an exciting development for those who have been engrossed in the saga. Vardy’s claim also serves as a reminder that whilst legal aid is being relentlessly cut, celebrities’ bank accounts will always be litigation-friendly.

An exploration of the legal issues surrounding Vardy’s claim and what Rooney’s chosen defence could mean for the outcome of the case are provided here.

Background

For those who have managed to avoid the story, on 9 October 2019 Rooney tweeted a statement in which she accused Vardy of leaking stories about her to The Sun newspaper. It was arguably not the accusation itself that garnered so much attention but rather the outline Rooney gave of her investigatory methods, which led to her being dubbed ‘Wagatha Christie’.

In the statement, which is still viewable on her Twitter page (embedded below), Rooney revealed how she had blocked everyone from viewing her Instagram Story bar the account of one individual who she suspected might be the culprit. She then posted false information to her Story to see if it would be shared with The Sun. After articles based on this false information appeared in The Sun — including a story about the basement flooding in her new home — Rooney stated that she knew which “account/individual” was responsible. In a line that launched a thousand memes, Rooney concluded by stating: “It’s……….Rebekah Vardy’s account.”

This has been a burden in my life for a few years now and finally I have got to the bottom of it…… pic.twitter.com/0YqJAoXuK1

— Coleen Rooney (@ColeenRoo) October 9, 2019

Following the statement, Vardy publicly denied all the allegations and later gave a tearful interview on Loose Women in which she described the scandal, which occurred when she was seven months pregnant, as one of the worst things she’s had to deal with. She described how it had even led to her being hospitalised.

Relevant defamation law

Libel is a form of defamation that concerns ‘lasting’ publications such as print or broadcast media or, as in this case, tweets. As the Supreme Court confirmed in Lachaux v Independent Print Ltd [2019], section 1(1) of the Defamation Act 2013 altered the previous common law and now means that libel will only be actionable where it can be shown that a defamatory statement did cause, or was likely to cause, serious harm. The Explanatory Notes to the Defamation Act explain that this means serious harm to the claimant’s reputation.

Vardy will thus either have to prove that she actually suffered serious harm to her reputation as a result of Rooney’s tweet, or that the tweet was likely to have caused this.

There are a number of remedies available including damages, an injunction, publication of a summary of the court’s judgment, and an order to remove the defamatory statement.

Damages are the primary remedy and are usually made in the form of compensation for the claimant’s distress or for any losses caused by the damage to their reputation. Aggravated damages are also available where the defendant’s behaviour has been particular hurtful to the claimant.

In response to Rooney accusing her of leaking stories to The Sun, Vardy said: “I’m not being funny but I don’t need the money.” It is arguably questionable whether Vardy will be seeking damages. What is more likely perhaps is that Vardy will seek an order to remove the statement given that it is still available on Rooney’s Twitter page. Pursuant to section 13 of the Defamation Act, the court has the power to order Twitter to remove the statement.

Available defences

A number of defences are available to defendants as set out at subsections 2-7 of the Defamation Act. The most relevant are discussed below.

Truth

Section 2(1) of the 2013 Act states that: “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.”

Those wishing to get to the bottom of whether it really was Vardy’s account will likely be wanting Rooney to run this defence which would require her to prove that her statement was true as a matter of objective fact. This serves as an absolute defence to a defamation claim.

Although a high threshold to meet, Rooney’s solicitor, Paul Lunt, partner and head of litigation at Brabners, said in a statement made on behalf of Rooney that she has further evidence to support her accusations suggesting that this could be the defence she chooses to plead. If the claim is to go to trial, this defence may also involve the court assessing the reliability of Rooney’s sleuthing techniques.

Honest opinion

Section 3 of the 2013 Act sets out the defence of honest opinion.

This applies where the following conditions are met: the statement was a statement of opinion (section 3(2)); the statement indicated the basis of the opinion (section 3(3)); and an honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was published (s3(4)(a)) or anything asserted to be a fact in a privileged statement published before the statement complained of (s3(4)(b)).

If Rooney were to plead this defence, it would require the court to assess whether her statement was presented as one of fact or opinion. The issue of delineating between the two was addressed by Warby J in Barron & Ors v Collins [2015] where he said [at paragraphs 15-17]:

“[A] statement expressed as an inference will often be an expression of opinion… It is not submitted, however, and I do not understand it to be the law, that any statement about a matter, the facts of which cannot be within the personal knowledge of the speaker, is to be treated as an inference and hence a statement of opinion…

The way the statement would strike the ordinary reasonable listener and viewer is a sufficient criterion.”

Thus, if this defence was pleaded, the views shared by members of the public on her statement may be more relevant than previously thought. Was ‘Wagatha Christie’ stating the water-tight conclusion of her foolproof detective work, or was she simply making an inference from her Instagram investigation as to who the culprit was?

Publication on matter of public interest — section 4 Defamation Act 2013

This would be bold of Rooney, let’s be honest.

Although some may be following the progress of the case with keen interest, Rooney’s solicitor said this week on her behalf: “Coleen feels that the time and money involved could be put to better use.”

Cassie Blower is a first class law graduate from the University of Bristol and has completed the BCL at the University of Oxford. She currently works at Keating Chambers as a legal assistant.

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On 1 April 2020, two cases came to the Supreme Court, WM Morrisons Supermarkets plc (Appellant) v Various Claimants (Respondent) and Barclays Bank plc (Appellant) v Various Claimants (Respondents), both of which sought to deal with the long-standing principle of vicarious liability.

What is vicarious liability?

Vicarious liability is when one party is liable for the wrongdoing of another party. An example of a relationship that would evoke this doctrine is an employment relationship; where an employee is at fault for a tortious wrong, the employer would be liable to pay the damages.

Two elements need to be fulfilled before vicarious liability will be successfully shown:

1. There must be a ‘relationship’ between the two people which makes it proper to make one pay for the fault of the other.
2. There must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort.

Case overviews

Barclays Bank v Various Claimants sought to tackle the first element of this criterion; when does such a ‘relationship’ arise for one to be vicariously liable for the other?

Barclays hired a doctor’s services to perform compulsory medical examinations on new employees. Years later, it was discovered that he had allegedly sexually assaulted 126 patients during the course of these examinations. The Supreme Court held that as the doctor was not strictly ‘employed’ by Barclays but was instead an ‘independent contractor’, Barclays was not liable for the doctor’s alleged wrongdoing.

Morrisons Supermarket v Various Claimants tackles the second element of the criterion; when is there a ‘sufficient connection’?

In a personal vendetta against the company, a Morrisons auditor leaked thousands of employees’ personal information online. These employees later brought this case against Morrisons. The Supreme Court held that as the auditor acted outside of his job description and for ‘purely personal reasons’ which had no economic benefit for Morrisons, there was not a sufficient connection between the wrongdoing and the employment relationship.

Within one day, the Supreme Court sought to address the ambiguity of vicarious liability. However, we can question: how successful has the court been?

The purpose of vicarious liability (much like the whole of tort law) is to secure compensation and justice for victims via payment of damages. Have these new decisions tipped the balance in favour of large corporations or has it redressed the balance to make it fairer for all?

Consequences of the Supreme Court’s decision

The Morrisons v Various Claimants decision has not diminished vicarious liability but has instead added security and commercial protection to businesses. It is not right that any company should be penalised for any ‘personal vendetta’ against them and that Morrisons themselves had no intention of benefitting from. This decision is welcomed by many corporations who now do not need to bargain in markets where their employees are unjustly empowered against them in the eyes of law. Additionally, it should deter any workers who believe their wrongdoing will be bailed out by their employers. Workers now need to align their values with that of their companies in order to protect themselves from unwanted litigation.

However, the Barclays v Various Claimants decision appears more controversial. It is a long-standing principle that vicarious liability is only subject to employees and not that of independent contractors. However, due to the compulsory nature of these medical examinations and the sensitive subject area which this case invades, many feel uncomfortable that a relationship such as this is not ‘akin to employment’.

In the judgment, Lady Hale discusses the Employment Rights Act (ERA) 1996, which defines ‘workers’ to encompass independent contractors. If this new definition was applied, then the doctor would fall within the definition of a ‘worker’ and thus within the realms of Barclay’s vicarious liability.

Despite this, the court held that as the ERA 1996 was made separately and distinctly from the common law doctrine of vicarious liability, “it would be going too far down the road of tidiness to align” the two (Hale in Barclays Bank plc v Various Claimants, paragraph 29).

Personally, I question whether this was the correct stance to take: even though vicarious liability is a well-known tort principle, the basis of our discussion is employment-related. To ignore an employment definition purely because it doesn’t ‘align’ neatly to this common law concept appears to leave a significant loophole for corporations when employing ‘workers’ in the future.

Additionally, this judgment leaves vulnerable victims, many of whom were underage at the time of the assault, without the justice they deserve. Hale briefly discussed a non-delegable duty of care (this is a duty not to take care themselves but ensure that care is taken appropriately by others) but breezed past it without much further comment or deliberation.

In Woodland v Essex County Council [2013], it was held that even where a school had hired an independent contractor, they were held to be liable under a non-delegable duty of care. More attention should have been paid to this key area of law to ensure such vulnerable and young victims are not left in this void of injustice emanating from this confused common law doctrine.

Where does this leave us?

Lord Philips in Various Claimants v Catholic Child Welfare Society [2012] stated that ‘the law of vicarious liability is on the move’, but we have good reason to question: is it moving in the right direction?

For corporations: there is much to be regarded by these decisions. The CEOs can sleep easy at night knowing any ‘personal vendetta’ by an employee will not cause them a hefty paycheck and they can also minimise any potential further liability by ensuring new workers come under the specification of an ‘independent contractor’.

Despite this, businesses should be aware that even though their vicarious liability may be reduced as a result of these decisions, a non-delegable duty of care may come to haunt them as a more fitting penalty.

For employees and individuals: from the outset, not much has changed. Employees are still protected from personal liability by their employers in the standard format they always have been. However, many should tread carefully to sustain this protected relationship by following their employment specification to the letter.
Additionally, victims may struggle to receive the compensation they are entitled to as ‘independent contractors’ become more attractive to businesses. As a result, it may appear that justice is a diminishing luxury.

Olivia Gladstone is a second year law student at the University of Birmingham.

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The Court of Appeal has ruled on a pinnacle case in professional negligence. Dr Bawa-Garba will not be erased from the medical register, as the High Court had allowed from the General Medical Council’s (GMC) previous appeal. Instead, she will be suspended before continuing practice upon completion of her suspension.

Background

In 2011, six-year-old Jack Adcock was under the care of Dr Bawa-Garba and several other medical professionals. Jack suffered from Down’s Syndrome and a known heart condition, and had been suffering from diarrhoea, vomiting and difficulty breathing, when he was admitted to the Children’s Assessment Unit (CAU) at Leicester Royal Infirmary on 18 February 2018. Jack was treated by Dr Bawa-Garba, then a specialist registrar in her sixth year of postgraduate training (ST6). Dr Bawa-Garba had recently returned from maternity leave and due to the absence of more senior staff members, was placed in charge of the Emergency Department and CAU that day.

The failures in the care administered (or lack thereof) to Jack included significant delays in test results due to IT failures, Dr Bawa-Garba’s failure to request a consultant review Jack’s condition, her failure to specify medication Jack was taking should be discontinued and the most significant failure of all, mistaking Jack for another patient who had a ‘do not resuscitate’ order. After Jack went into cardiac arrest, medical professionals failed to carry out the relevant CPR, resulting in his death.

Hearings

A hearing on 2 November 2015 found that nurse, Isabel Amaro, was guilty of his manslaughter, on the grounds of gross negligence. The sentence was suspended for two years. Her involvement extended to a significant failure in monitoring Jack’s vitals and reporting them to the relevant health professional for consideration.

A hearing two days later found Dr Bawa-Garba guilty on the same grounds, gross negligence manslaughter. It was found that the treatment did not amount to a “momentary lapse in judgment”, that Jack had been neglected for a prolonged period of time, and that the breaches were not “simple breaches of duty” but “really serious breaches amounting to gross negligence”. On 14 December 2015, a two-year suspended sentence was handed to Dr Bawa-Garba.

Criminal appeal

Dr Bawa-Garba attempted to appeal against the criminal conviction, but was rejected by the Court of Appeal on 8 December 2016.

MPTS hearing

On 13 June 2017, Dr Bawa-Garba was suspended from working for 12 months by the Medical Practitioners Tribunal Service (MPTS). The MPTS reached the conclusion that with the mitigating and aggravating factors, erasure would be disproportionate.

In an unexpected and unprecedented move, the GMC lodged an appeal on this decision, by virtue of its statutory framework, namely sections 1 and 40(a) of the Medical Act 1983 (MA) which state:

(1A) The over-arching objective of the General Medical Council in exercising their functions is the protection of the public.

(40A) This section applies to any of the following decisions by a Medical Practitioners Tribunal —

a decision under section 35D giving –

a direction for suspension, including a direction extending a period of suspension;

(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

The GMC were certain that erasure was the more appropriate outcome in this situation, rather than temporary suspension.

The High Court appeared to agree with some submissions made by the MPTS regarding Dr Bawa-Garba. Paragraph 19 of the judgment states:

• Other than this matter, you have an unblemished record as a doctor
• You were of good character prior to your offence
• You remained employed by the Trust up until your conviction in 2015
• There is no evidence of any concerns being raised regarding your clinical competency before or after your offence
• The length of time which has passed since your offence
• Before the events of 18 February 2011, you had recently returned from maternity leave and whilst you had completed some on-call shifts, this was your first shift in an acute setting
• On the day in question, you were covering CAU, the emergency department and the ward
• The multiple systemic failures identified in the Trust investigation following the events of 18 February 2011
• There is no evidence to suggest that your actions on 18 February were deliberate or reckless.

However, notwithstanding these considerations, the court reached an opposing conclusion, stating:

“Nonetheless, I have come firmly to the conclusion that the decision of the Tribunal on sanction was wrong, that the GMC appeal must be allowed, and that this court must substitute the sanction of erasure for the sanction of suspension. No-one suggested that this issue should be remitted to the Tribunal for further consideration. I note what Nicol J said in sentencing Dr Bawa-Garba, to the effect that the conviction meant that her career was over. It was an assumption or instinctive reaction to the circumstances before him, which may have mitigated sentence. But I have reached my own conclusion, unaffected by his reaction or expectation.”

Presiding, Mr Justice Ouseley was concerned that the MPTS did not show deference to the verdict of the jury, and instead reached its own and less severe view of the degree of Dr Bawa-Garba’s personal culpability. He commented that the MPTS had “a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established.” Dr Bawa-Garba was subsequently erased from the register.

The reaction from concerned medical practitioners grew, particularly, the message it sent to practising doctors who made ‘mistakes’ not least given the strain on NHS resources and prolonged shifts that they worked. This lead to a public appeal to fund taking Dr Bawa-Garba’s case to the Court of Appeal as a matter of “important point or principle” which has a “real prospect” of success. The fund has raised £366,289 (as of 13 August 2018).

The outcome of the appeal

The Lord Chief Justice Lord Burnett, Master of the Rolls Sir Terence Etherton and Lady Justice Rafferty presided in this case.

The outcome, read live on Sky News yesterday afternoon, found that Dr Bawa-Garba should not be erased from the register. The reasons for this were that the decision in the previous instance was not a decision of fact or law, but an evaluative decision based on many factors. Sir Terence Etherton stated that “the decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as ‘a multi-factorial decision’. This type of decision, a mixture of fact and law, has been described as ‘a kind of jury question’ about which reasonable people may reasonably disagree.”

He continued: “In Bowen and Stanton, McCombe LJ went on to quote from Lord Clarke’s judgment in Re B (A child) (care proceedings) as follows:

“In England and Wales the jurisdiction of the Court of Appeal is set out in Civil Procedure Rule 52.11(3), which provides that ‘the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. The rule does not require that the decision be ‘plainly wrong’. However, the courts have traditionally required that the appeal court must hold that the judge was plainly wrong before it can interfere with his or her decision in a number of different classes of case. It was stated “The [MPTS] was an expert body entitled to reach [its] conclusions, including the important factor weighing in favour of Dr Bawa-Garba that she is a competent and useful doctor, who represents no material continuing danger to the public and can provide considerable useful future service to society.”

Therefore, “an appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide”.

Clearly, the decision was one involving the latter, as paragraph 97 of the judgment went on to say that “there were no grounds for allowing the appeal under section 40A of the MA 1983 on the basis that the sanction decision was wrong because the only sanction properly and reasonably open to the Tribunal was erasure”. Ultimately, the decision to allow the GMC’s appeal was incorrect, as there was no scope to allow it, due to the fact that there were other sanctions available to the MPTS aside from just erasure.

Dr Bawa-Garba’s appeal was therefore allowed. The Court of Appeal were eager to stress that the decision was not something the GMC should have been allowed to appeal. Paragraph 97 directly questions the scope in which the GMC is able to pursue future appeals. In future, it may be a ‘case-by-case’ situation. However, it is clear through this decision that manslaughter (in these circumstances at the very least) are not sufficient grounds in itself to disagree with the sanctions imposed by the MPTS.

Lydia Campbell is studying the Bar Professional Training Course at BPP Law School. Prior to this, she completed an LLB at the University of Liverpool. She is also undertaking an LLM at the University of Liverpool on a part-time basis..

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Whenever we think of health and safety, the inevitable image is of the jobsworth with a clipboard telling you what you can and cannot do. Let’s be honest, it doesn’t get good press! But there is a sound argument that the Health and Safety at Work Act 1974 (HASWA) has done more to revolutionise how we go about our lives, and our working lives in particular, than any other piece of legislation from the past 50 years.

A brief bit of history. With the images and tales told of the workhouses and of working conditions in general, it is hard to believe that the very first piece of health and safety legislation dates back to the early nineteenth century and the Factory Act 1802. Throughout the nineteenth century, workers’ existences were, to quote the seventeenth century philosopher Thomas Hobbes, “nasty, brutish and short”.

The 1802 act was introduced by Sir Robert Peel in response to an outbreak of malignant fever at one of his cotton mills. The act itself was fairly limited in its scope as it only affected cotton mills and factories, requiring them to be properly ventilated and set basic requirements for cleanliness. In effect all this meant was opening windows and ensuring that premises were cleaned a minimum of twice a year. The 1802 act also granted apprentices a basic education, included a clothing provision and set limits on daily working hours (12 per day).

Even with the good intentions of the 1802 act, it was not effectively enforced as it lacked an independent body to make sure these minimum standards were being met, and instead relied on the good will of the mill and factory owners. In spite of this, we can see the first tentative steps towards what we take for granted today.

The Factories Act 1833 introduced, for the first time, the idea of a government appointed inspectorate. This was done in order to give the legislation more teeth, but again it appeared to have a relatively limited impact as the inspectorate was only a four-man team and there were over 4,000 mills and factories. The act was easily evaded by unscrupulous mill or factory owners.

The common law took a turn toward employee rights in the workplace with the 1837 case of Priestly v Fowler, which established a common law duty of care of employers towards their employees. This principle was enshrined in legislation in the Employers Liability Act 1880, which gave legal protection to workers for accidents caused by their employers’ negligence. This was replaced by the Workman’s Compensation Act 1897 which introduced payments for workers in certain industries who were injured “out of and in the course of employment”.

The Factory and Workshop Act 1878 consolidated all the previous acts into one, and also placed working hour limits on child and female labour: no child under ten was permitted to work, and women were permitted to work a maximum of 56 hours a week.

All previous legislation relating to factories and workshops was consolidated by the Factories and Workshop Act 1901, which also raised the minimum working age to 12, and for the first time legislated at national level for employers to provide a means of escape for employees during fires. Parliament provided further consolidating legislation through the Factories Act 1937, which consolidated all factory and workshop related legislation between 1901 and 1929, and perhaps this was the first attempt at a more comprehensive and condensed legislative code on health and safety in all factories.

As you can see, the overwhelming majority of health and safety legislation focussed on areas of manual labour, with reasonable justification.

In 1947 through the Gowers Committee — which looked into health and safety away from its traditional focus — there was perhaps the first recognition of the need to extend health and safety legislation to non-industrial spheres of employment such as offices and shops.

Among its most important recommendations were for sanitary accommodation, washing facilities, heating, lighting and ventilation, fire escape systems, first aid and safeguards for dangerous machinery and chemicals in such workplaces where there was no previous legislative provision. It was not until the Offices, Shops and Railway Premises Act 1963 (now superseded by the Workplace (Health, Safety and Welfare) Regulations 1992) that non-industrial workers had some form of protection under the law, extending safety provision to a further eight million workers.

Historically the legislative approach has been somewhat piecemeal and gradual, but the more that we see health and safety legislation develop, the more we see it expand into wider spheres of industry.

In addition to this, we can also see how the approach to health and safety develops.

This perhaps is best demonstrated in the case of Edwards v National Coal Board (1949) which introduced the concept of ‘reasonable practicability’. This is the idea that employers must balance the time and expense necessary to implement safety measures against the potential effect of taking such measures.

This effectively implied the need for employers to undertake risk assessments within the workplace environment in order to recognise potential risks and to balance the level of obligation upon different types of employer. While not excusing impecuniosity, it made allowances for small employers who did not have the means to implement sometimes expensive safety measures, while making implied demands upon larger employers who had the financial means to do so.

Although all of this legislation had some impact upon working conditions, it still relied upon a ‘voluntarist’ approach from employers to implement it and effectively left them to their own devices, save for a few state regulations such as machine guards in factories.

While the highest risk industries were regulated, many were not and were at the mercy of employers voluntarily taking safety matters seriously. There were numerous inspectorates with too few inspectors responsible for enforcing standards and a large number of statutes with no overarching framework, which often confused employers about what they were required to do.

The shortcomings of this approach were all too apparent. By the end of the 1960s, around 1,000 people per year died as a result of workplace accidents, and by 1970 there were still five million workers without any kind of safeguards under the law. Something needed to be done.

In 1970, Alfred Robens (or Baron Robens of Woldingham as he was officially known) was appointed to investigate and propose a solution to the issue of improving workplace health and safety. In 1972 he published his report, and what he proposed was radical.

He proposed to abolish the myriad of inspectorates and consolidate it down into one, overarching inspectorate with control over all areas of health and safety regulation. His report also encouraged the replacement of the prescriptive, detailed approach of before with a more goal-orientated, generalised duty to reduce risks “as far as reasonably practicable”, promoted greater self-responsibility and considered the statutory approval of voluntary standards an important regulatory tool.

The report learned valuable lessons from Sweden’s Workers’ Protection Act 1949 which provided for the appointment of safety representatives and joint safety committees. The implementation of safety delegates and safety committees at workshop level seem to offer a workable system of compulsory joint consultation with voluntary cooperation super-imposed. This principle of workers’ integration into the process of safety management was part of the self-regulating approach the report championed. As a result of the Robens report, HASWA was enacted in 1974 and implemented almost all of Robens’ recommendations.

The effect of HASWA can be seen clearly from the statistics. Sometimes they say that statistics do not tell the whole story, but in this instance they appear to paint a pretty clear, lucid picture.

In 1974, there were 651 fatal injuries and 336,722 non-fatal workplace injuries reported. In 2015/16 there were 144 fatal injuries and 72,202 non-fatal workplace injuries reported. This represents a fall of 78% in fatal workplace injuries, and a 79% fall in non-fatal injuries.

These statistics go some way to demonstrating the efficacy of the new approach. The legislation has saved hundreds, possibly thousands, of lives through avoidable workplace accidents, and improved working conditions for millions more. Secondary legislation arising from HASWA such as The Health and Safety (Display Screen Equipment) Regulations 1992 (amended 2002) provide office workers with guidelines to guard against less obvious risks arising from office work such as musculoskeletal disorders (back pain, upper limb pain, etc). Similar regulations exist for control of chemicals, provision of work equipment as well as other areas and creates a relatively easy, less prescriptive regime for employers to follow.

We have all heard of overzealous officials making decisions in the name of health and safety (anyone remember the ban on playing conkers or the ban on Christmas lights in the office?), and this has given health and safety a bad name.

But the next time someone rolls their eyes at the mere mention of ‘elf and safety’, we would do well to remind ourselves of the successes of HASWA over the last 43 years. By simplifying and consolidating the regulatory regime, and changing the approach to health and safety, it has done more to revolutionise the way we work than almost any other piece of legislation.

Mark O’Neill is a law student at the Open University.

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In the early 1990s, the courts were at breaking point, crippled by constant delay, ever-increasing costs and an ever-expanding case list. This was due to an overriding focus on ‘substantive justice’; the idea that the pursuit of justice requires that the merits of each case must be heard in full, irrespective of the costs involved.

In 1994, Lord Woolf was appointed to review the rules of civil procedure, with the aim of reducing the overall cost (fees and charges required by law to be paid to the courts or their officers) and the complexity of litigation. This resulted in the introduction of the Civil Procedure Rules 1999 (CPR), which have been used ever since.

At the heart of these rules is the ‘overriding objective’: a rule which requires cases to be dealt with “justly and at proportionate cost”, so far as is practicable. In the early 2000s, the reforms were mostly regarded as a success.

However, after several years, many judges and practitioners felt the legal system had begun to head back toward the situation we saw in the 1990s. As a result, Sir Rupert Jackson was appointed in 2009 to review civil costs and presented his recommendations in early 2010. Most of these recommendations were adopted by the government, and a new set of ‘costs budgeting rules’ was released.

To sum up the reaction to these rules, Master Barbara Fontaine probably put it best:

It would be an understatement to say that the costs budgeting rules that have been introduced have not been received well by either the judiciary or practitioners.

Such was her Ladyship’s opening during a lecture she gave earlier this year to a small cohort of Civil Procedure students. How right she is.

As she sees it, the current system suffers from two main complaints:

1. Costs are unpredictable and disproportionate.
2. The incentive of high hourly rates makes this unlikely to change.

The result? The cost of litigation, in the words of Adrian Zuckerman, is “high, unpredictable and can end up out of all proportion to the value of the subject matter in dispute”. This is undoubtedly the reason for the meteoric rise in cases brought by litigants in person, for who, in particular, the juice will rarely now be worth the squeeze.

In short, the current system has failed to address either of the two complaints. This is particularly true in cases of personal injury or clinical negligence, where the parties’ positions are notably imbalanced.

This — combined with Qualified One Way Costs Shifting (QOCS) whereby defendants will generally be ordered to pay the costs of successful claimants but, subject to certain exceptions, will not recover their own costs if they successfully defend the claim, as well as highly unpredictable litigation — means that a defendant’s insurers are unlikely to agree to cover the claimant’s costs.

With that said, there have been signs of improvement in some areas such as in cases of urgent health issues (cost budgeting is now discretionary), in cases under £50,000 (for which there is now a simplified procedure) and the introduction of guidance to encourage parties and judges to take a more broad-brush approach to agreeing/fixing costs. This is a welcome trend, moving towards Jackson LJ’s recommendation of making all costs management discretionary. For the moment, however, the majority of cases remain disproportionately expensive.

The introduction of the CPR following Lord Woolf’s recommendations in 1996 shifted the emphasis of the system from substantive justice to one of proportionality. This was a noble venture and is arguably much needed. As Professor John Sorabji notes, if cases are treated as “hermetically sealed” from the impact of other cases, many will not get access to justice. Such was the legacy pre-Woolf: systemic delay.

On the other hand, there is a strong argument for substantive justice, and Professor Neil Andrews rightly reminds us that we should not unwittingly sacrifice justice for proportionality as this will undermine the faith of the citizen in the system. In short, while the civil justice system should have regard to proportionality, it should not be implemented so stringently that justice becomes impossible. Doing so has given rise to four main problems.

First, the CPR permit the court to adjust costs down to a “proportionate level”. This renders the cases where costs are reasonable and necessary but disproportionate being classed as disproportionate. However, the problem with this is that unless a party is guilty of misconduct, the individual is penalised by an unprincipled application of the proportionality rule. The better view, says His Honour Michael Cook, is not to put the burden on the winning party, but to deal with high hourly rates. Quite so!

Second, the cost of litigation is unpredictable. This is, Zuckerman says, because what constitutes proportionate is far too subjective under CPR 44.4. For example, the amount of skill, expertise and the value a claimant places on a case will be very hard to ascertain, particularly as the amount of skill and expertise will heavily depend on the expertise and skill of the practitioner. Non-monetary claims (e.g. reputation) are difficult to quantify.

Third, proportionality can undermine substantive justice. As such, disproportionality must be weighed, from time to time, against access to justice. For example, as Professor Claire McIvor notes, sometimes the value of the claim is low indeed, but the value of exercising one’s rights must, at least broadly, remain supreme. Take, for example, the case of Ward v Byham where the claim was worth £1 per week. In these sorts of cases, the costs are bound to be disproportionate to the value of the subject matter in dispute. Failure to appreciate this will discourage the vindication one’s rights, particularly in the case of the impecunious litigant.

Finally, one of the biggest reasons for us having the two complaints is that before the Jackson reforms base costs, success fees and After the Event (ATE) premiums — which would cover any expenses of your opponent’s legal costs up to £25,000 in the event that you lost your case — were recoverable. This was a misstep partially corrected by the Jackson reforms, but it has not addressed one of the biggest culprits of high cost litigation: high hourly rates. This is because they are still calculated in the base rate, with no reference to proportionality (see CPR 48.8 and CPR 48.9). Unless this is remedied, the status quo is bound to remain the same.

So is there a solution?

In order for the status quo to change, we need a system more like that of the, dare I say, United States or Germany. Of the two, Germany seems the most preferable.

The so-called ‘no cost-shifting rule’ applied in the US system deals inherently with disproportionality because the claimant has to decide if the claim is worth the money to him. He will not recover his costs, even if he wins. He must decide if the proverbial legal juice is worth the squeeze. The trouble with the US system, though, is that the pervasive high hourly rates make it almost impossible to get a proportionately costed case (Cook).

Perhaps then, a fixed-cost system will provide us with the answer. Indeed, a fixed-cost system has been introduced by England and Wales for some personal injury and intellectual property claims (CPR 45). Further, in the multi-track claims over £25,000 and under £10 million must go through costs budgeting; though this has been largely unsuccessful (see above). Cost capping is also available under CPR 3.10, but is rarely used. Sir Rupert Jackson has since proposed applying fixed costs to all claims up to £250,000 in the IPA Annual Lecture he gave in January of this year.

The better view is the adoption of a system like that used in Germany. There, the courts use a pre-determined cost grid that allows a quick estimate of proportionate cost based on the number of hours reasonable in light of the complexity of the claim. For this to be successful, however, there would need to be an overhaul of the hourly rates (Cook) and, as Zuckerman has argued, this overhaul should be undertaken by an independent body.

Taking stock, it seems clear the two complaints we have examined are still complaints we could levy today. However, we have also seen that in certain circumstances this is a necessary evil. It is hoped the courts will be mindful of this as they continue to carry out their CPR 44.4 analysis. However, the unavoidable reality is that the system is in need of an overhaul. When it comes to costs, the juice is — for the average man at least — seldom worth the squeeze.

Michael Woollcombe-Clarke is a recent University of Cambridge graduate.

Sources

Cook, M. (2010) ‘Hourly rates and fixed costs’

Andrews, N. (2003) ‘Civil Procedure’

Sorabji, J. (2013) ‘Prospects for proportionality: Jackson implementation’

Zuckerman, A. (2010) ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore Up a Dysfunctional System’

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It is an established principle of tort law that a claim can be made, most commonly by a mother, against a health care practitioner (HCP) where she was negligently not told of a genetic condition that results in a disabled child being born. The claim would be that if she had known, she would have opted for an abortion.

The sum given in successful claims is only for the extra cost of raising a disabled child (Rand v East Dorset Health Authority). This is known as a wrongful birth case.

Despite this, the child in this case has no claim against the HCP. This is known as a wrongful life claim. The only time this issue has come before the courts was 34 years ago in 1982 (McKay v Essex). Mary McKay’s mother contracted rubella while pregnant with Mary, yet she was told everything would be fine and there would be no long term effects. They were wrong. Mary suffered debilitating, permanent birth defects. Mary was unsuccessful in her claim.

The court struck out the claim on two main grounds. Firstly, that this would impose a duty on doctors to terminate pregnancies such as this and this would convey an unpleasant message, namely that the:

[L]ife of a handicapped child [is] not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving.

The second ground was that the courts deemed it impossible to calculate damages as it would mean a comparison between a disabled life and non-existence:

[H]ow can the court evaluate non-existence, the undiscovered country from whose bourn no traveler returns? No comparison is possible.

Time has progressed since this decision and with recent debates on topics such as assisted dying covering the same themes, the rationale in this ruling appears confused and evasive.

Each of the grounds on which this decision was based can be reviewed in a critical light.

For starters, the first ground is a moot point. Accepting wrongful life claims would not create a duty on the HCP to perform abortions; that choice would still be left to the mother. The duty would instead be to advise the mother on the effect of the illness or disease and give her the option of an abortion. The crux of the claim was always that the mother was not given the choice of an abortion as she was not aware of the effects of the disease. This was even conceded by the Court of Appeal in the original case:

I do not myself find this a convincing reason for denying the action if it would otherwise lie. The decision whether or not to have an abortion must always be the mother’s; the duty of the medical profession can be no more than to advise her of her right to have an abortion and of the pros and cons of doing so.

Therefore, the court appears to have created a straw man by putting forward a reason that appears logical that, in actual fact, is not the true reason for rejecting the claim, as this would not be a result of accepting wrongful life claims.

The focus of the court was instead on the second ground and the difficulty of assessing damages. The two key hurdles in assessing damages was that not only would they have to “pluck” figures from the air as no one has ever experienced the afterlife or pre-life to be able to make the comparison between the quality of life in that state compared to living in a disabled body, but also the court was uncomfortable with awarding a sum that would signify an apology for the claimant being born.

However, again, the reasoning of the court appears flawed here.

Courts frequently have to “pluck” figures from the air when quantifying an award. Let’s not forget the exact same calculation must be made when deciding the amount to award the mother in wrongful birth claims. The sums here would be exactly the same. There are endless awards and decisions that require some amount of judicial guesswork; how much a leg is worth or how much compensation a rape victim deserves. Courts constantly put a price on the value of life, such as how much a bereaved family should get for the loss of a loved one.

The calculation can be done; the root of the issue concerns the moral aspect of compensating for life itself.

The Court of Appeal stated that, except in the most extreme cases, life, even a maimed life, was always better than non-life.

Yet, cases like Mary McKay’s are the extreme cases. It would also only be the extreme cases that would be the subject of wrongful life claims. It is understandable that the court did not wish to enter such a controversial debate concerning the sanctity and value of life yet, in my view, if this were to be a tenable claim, the claimant would be suing for their mother’s lack of awareness and choice.

As we have already established, the duty would not be to terminate the pregnancy, but to inform the mother of the potential effects of the disease and offer her an informed choice. The claimant would therefore be claiming vicariously for the mother’s lack of choice, not because the HCP did not end their life. The court could then avoid philosophical debates regarding the value of life and re-focus their attention on the real wrong that has been done; denying the mother the requisite information which has directly impacted on the child.

In summary, the court’s rationale for disregarding wrongful life claims can be revisited to reflect the changes in the attitudes of society. The wrong that has been committed is denying the mother the choice of an abortion, therefore, the corresponding duty would be to properly inform the mother, not a duty to destroy the foetus.

Secondly and finally, it is true that even with a revised duty, the aim of compensation is still to put the claimant in the position they would have been had the wrong not been committed. The claim still remains that had the mother been given the choice, she would have chosen to have an abortion. A potential option for the court would be to see it from the point of view that had the child been born healthy, would they still have made this claim? The answer is simple: no. Therefore, just as with wrongful birth claims, the award would be the difference between being healthy and being disabled. It is true that the calculation would be exceedingly intricate and complex but the courts have ventured into these territories before and will do so in the future.

The simple fact is a wrong has been done. The claimant has suffered. The claimant deserves recompense. The court should not deny this simply because the calculation is too difficult.

Kirsty Day is an aspiring barrister. She recently completed the BPTC.

The post The law of wrongful life: Should the children be able to make claims? appeared first on Legal Cheek.

S57 of the Criminal Justice and Courts Act was introduced on 13 April 2015 into civil law, specifically in relation to personal injury proceedings.

This statute states that where a claim is found to be fundamentally dishonest in any way whatsoever the court must dismiss the whole claim even if there is some genuine element, unless to do so would cause “substantial injustice.”

This recent development has kept me (as a trainee at Fletchers Solicitors within the Serious Injury team) very aware of the potentially serious ramifications of such a principle being applied to one of our cases. My team deals with cases which vary in value from £25,000 up to multi-millions of pounds. This concept therefore has the potential to have an adverse effect on not only the recoverability of our costs, but also on each of our client’s settlement damages.

Such a concept has posed a number of issues: should, for example, claiming for four taxi journeys when only one was actually incurred mean that a case which is catastrophic in nature and worth multi-millions of pound be disallowed on the basis that the claimant has been dishonest? If not, where should the line be drawn?

Prior to this rule, a finding of fundamental dishonesty simply resulted in the claimant losing the protection of qualified one-way costs shifting (QOCS). Lawyers will be aware that the basis of QOCS is that an unsuccessful claimant will not be required to pay the defendant’s costs but the defendant must pay a successful claimant their own costs. It seems unlikely that the disapplication of QOCS (awarding full recovery of the costs of a defendant) would follow where the dishonesty goes only to part of a claim. However it is yet to be seen whether the court will feel bound to interpret fundamental dishonesty in relation to QOCS in the manner that would be required by s57.

Obvious fundamental dishonesty

An unreported case in 2015 involving a Mr Burnett, a semi-professional footballer, concerned him tweeting about playing a match just 24 hours after he had claimed for a whiplash injury.

He originally claimed £2,000 in damages for an accident but talked about his skills on the pitch a day later on social media. He claimed that injuries to his neck and back meant he would be unable to play for his team. He was subsequently ordered to pay £11,000 in costs when the court found his claim to be fundamentally dishonest.

Here, the claimant had been fundamentally dishonest in relation to the whole of his claim and should not receive any damages. If anything, he deserved more of a punishment by trying to ‘cheat the system’.

However, can the same really be said for claimants who do have a genuine claim and it is merely a small part of their claim that they have been dishonest about?

In Hughes, Kindon and Jones v KGM (2016), all three claimants alleged they had suffered injuries lasting 12 months following what was a very minor incident. At trial, a number of inconsistencies in the claimant’s evidence were highlighted, including the nature of the injuries suffered, failure to seek medical attention, and — in the case of one claimant — failure to mention the incident and injuries to their GP several months later. The claim was struck out for the claimant’s failure to provide witness evidence, with costs awarded to KGM.

However, one judge found that the impact was sufficient to have caused injury to Hughes and Kindon but for a period of just two weeks, rather than the 12 months claimed. On this basis, he awarded the pair £750 each in damages. The defendant insurer, using s57, said it would be unfair for them to still be liable for their costs.

In striking out the claims in their entirety, the judge said that the two claimants had presented a deliberately inaccurate position to the medical expert for financial gain. He also ruled that the claimants would not suffer substantial injustice from the decision. The claimants lost QOCS protection and were ordered to pay insurer costs of £6,100 and permission to appeal was refused. It would therefore seem the courts are adopting a very strict approach in this area.

Should mild exaggeration be enough to render a claim completely unsuccessful?

In the case of Gosling v (1) Hailo (2) Screwfix (2014), the claimant suffered a serious knee injury, requiring an arthroplasty operation, following an accident with a ladder manufactured by Hailo and sold by Screwfix.

The claimant claimed serious restrictions in his ability to function and founded a very large part of his case on his ongoing disabilities. The defendants conducted covert surveillance to see whether the claimant’s ongoing symptoms were as significant as he claimed. Footage showed the claimant shopping at some length in the morning without using a crutch. However, the same afternoon, the claimant attended a medical appointment during which he said he had constant pain, used a crutch and his wife did his shopping.

The medical experts were shown the footage and stated in a joint report that it showed the claimant was being dishonest about his problems. On being presented with the footage, the claimant settled with the first defendant for a significantly reduced amount of damages (£5,000 against the £80,000 pre-footage value of his claim) plus costs, and discontinued the case against the second defendant as they sought to argue that the claim regarding both liability and quantum was fundamentally dishonest.

It was held in this case that fundamental dishonesty was so clear the matter could be dealt with on paper and not by way of an oral hearing. Despite the arguments of a hearing wasting costs, being disproportionate and encouraging satellite litigation, did the claimant not deserve a right to have himself heard and convince the court that the papers were inaccurate? The footage showed the claimant was actually limping and still struggling despite not using a crutch.

When does exaggerating turn into being fundamentally dishonest? It would seem that where dishonesty goes to a large part of the claimant’s claim to damages, it should be characterised as being fundamental to the claim. Thus, assessing what constituted fundamental dishonesty requires placing a value on the dishonesty to the claim.

What should we be doing about it as lawyers?

I have been researching this particular topic, primarily to advise many of our clients and keep them up to date on this recent development. Essentially, clients need to be aware that any slight exaggeration of their injuries or any dishonesty in their claim, however small, has the potential effect of it being struck out and no damages being awarded.

In terms of putting these thoughts into action, I have been amending the covering letters for witness statements and schedule of losses which we send to our clients to read:

Under the Criminal Justice and Courts Act 2015 the defendant can apply for dismissal of the claim if the court is satisfied that, on the balance of probabilities, you have been fundamentally dishonest in relation to the primary claim or a related claim.

The future

So far, it would appear that intentional deceit and also mild exaggeration are enough for claims to be held as fundamentally dishonest and to be struck out as a result. The outcome of a small part of the claim being dishonest is yet to be seen. However, judging from the strict interpretation of the law in the cases mentioned, it is likely the court will have no hesitation in applying the principle in a catastrophic case unless substantial injustice was to be caused.

The question of fundamental dishonesty is yet to receive the consideration and attention that it deserves. Both the process and the basis for such a finding are likely to develop as the rule is applied and such application is tested.

Katelyn Williams is a trainee solicitor at Fletchers. She studied a law degree at the University of Sheffield and is currently completing her Legal Practice Course at BPP Law School alongside a training contract.

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As Pokémon Go players take to Britain’s streets, often finding themselves in unfamiliar places with their attention focused on their smartphones, the likelihood of an accident taking place is on the rise. So if something goes wrong, and personal injury occurs, does the blame lie with the game’s makers or with its players?

The free-roaming aspect of Pokémon Go has already caused a number of accidents and incidents.

In Florida, two teenagers playing the game in a car parked in a residential area were shot at by a man who believed them to be burglars. Meanwhile, in London’s Bexleyheath, another teenage boy was knocked over by a bike when his attention was taken by the game, and a group of youngsters in Hawthorn, Wiltshire, became hopelessly lost in caves and had to be rescued.

It’s no wonder then that personal injury experts are preparing themselves for a flurry of personal injury claims put forward by Pokémon Go players, as highlighted in a previous Legal Cheek article.

Like anyone who intends to make a personal injury claim, with Pokémon Go-related claims there are a number of actions to take as soon as possible after the incident. For example, informing the police and, if appropriate, the council, or land owner. If a physical injury has been sustained, notes of the injury should be kept, and if possible, photographic evidence of the injury should be gathered. It’s also a good idea to write an account of what happened as soon as possible, while the details remain fresh in all witnesses’ minds.

What about children hunting Pokémon on private property?

Many people mistakenly believe that if a child strays onto private property and trespasses, any injury they sustain is, by law, their own fault. In fact, this isn’t necessarily the case.

The Occupiers’ Liability Act 1984 states that there’s a legal responsibility for an occupier in control of land to make sure that either the property is safe should a child trespass, or that it is secure enough that a child would not be able to successfully enter, no matter how determined they are to catch those pesky Pokémon.

Could the game’s makers be liable for personal injury?

The organisations behind Pokémon Go are Niantic, The Pokémon Company, TPCI and Nintendo. Understandably, they’ve put a number of measures in place in an attempt to cover themselves against liability for players’ personal injury claims. As well as a ‘friendly’ welcome that warns players to abide by local laws (specifically mobile phone use while driving) and for them to ‘be aware of their surroundings’, the topic is also covered in the game’s extensive terms and conditions.

Within these T&Cs is a clause that states that unless players email the makers within 30 days to opt out, they have no right to arbitrate against them. It remains to be seen whether British consumer law, notoriously stricter than its US counterpart, would stand by the ‘fairness’ of such a demand.

What about businesses that want in on the Pokémon Go action?

All sorts of businesses, from cafés and shops, to kids’ attractions and activity centres, have been quick to appreciate the huge boost in footfall the interactive game could represent.

Throughout the game there are a series of Pokéstops — dedicated locations that players must visit in order to activate new parts of the adventure. It’s believed that these spots have, so far, been selected at random. Businesses actively encouraging an increased footfall and using the game’s appeal to do so need to still ensure that their premises are safe and have the capacity to handle the increase in footfall with clear signage of any areas not suitable for playing the game.

Furthermore, were the game’s makers to commercialise these chosen GPS locations and introduce associated advertising into the game itself (which is currently being debated with a Domino Pizza Pokémon spoof having already been sighted), businesses buying into the scheme could potentially find their legal position changed.

What if you don’t want players near your residential property or business?

It may be that you run a business for which the presence of Pokémon Go players simply isn’t appropriate. For example, a late night bar, a funeral home, or other predominantly adult locations. Or, you may be unlucky enough to find that a Pokéstop or Pokégym exists in the immediate proximity of your home.

Trespass laws are on your side and if someone comes onto your property without permission, you can call the police. It’s also worth remembering that in order to ‘catch them all’, Pokémon Go players shouldn’t need to trespass.

In terms of the likely outcome of any Pokémon Go-related personal injury claims, these are early days, and what needs to be remembered is that no matter if player or business standard laws still apply, i.e. your premises still need to be safe even if people are looking at their phones, and even if there is a rare Pokémon around, you can’t ignore the law (so far the most common law broken by avid players has been playing the game while driving).

The game’s makers, the players themselves and the organisations who find their premises caught up in the saga will no doubt be watching closely as the first claims are made.

Sarah Cunliffe is a personal injury associate at Access Legal.

The post Pokémon Go: When does a game become a personal injury battle? appeared first on Legal Cheek.

The tragic events at Hillsborough Stadium during the FA Cup semi-final in 1989 resulted in the deaths of 96 people, injuries to hundreds of fans and traumatised many more.

The verdict of the recent coroner’s inquiry gave the victims family’s some much deserved closure and justice after a long, long fight.

In the years immediately following the tragedy, controversial judicial decisions in cases such as Alcock v Chief Constable of South Yorkshire developed the English common law in relation to the rules on primary and secondary victims of negligently inflicted psychiatric injury. There has been much debate following these decisions, with many commentators believing them to be arbitrary, inconsistent and unfair to claimants.

This was nicely summarised by Lord Steyn in White:

[T]he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.

A claimant can only claim for psychiatric harm if he or she suffers or has suffered from a recognised medical condition, such as personality disorder or post-traumatic stress disorder.

Alcock added that the condition must be induced by shock. Damages cannot be awarded for the ordinary grief or sorrow caused by a person’s death.

The Alcock case was the first of two House of Lords cases that stemmed from Hillsborough, and it was Lord Oliver’s judgment which created a formal distinction between ‘primary’ and ‘secondary’ victims, namely those in the area of danger or at risk of danger (primary victims) and those who witness the events as secondary victims.

The rules for primary victims are relatively straightforward. The claimant must have suffered a recognised psychiatric disorder, and there must be reasonable foreseeability of the risk of physical injury following the defendant’s negligence, even if psychiatric harm itself was not reasonably foreseeable. Notable cases such as W v Essex County Council and Farrell v Avon Health Authority have allowed claimants to successfully recover damages as primary victims despite there being no risk of physical injury.

In contrast, in claims brought by secondary victims, although the requirement to have suffered a recognised condition remains, there are additional control mechanisms that claimants must satisfy.

These were first discussed in McLoughlin v O’Brian, but Alcock later refined these by stating a secondary victim must have close ties of love and affection with the victim; that there must be close proximity in time and space to the accident or its immediate aftermath; that the injury must result from a sudden and not gradual shock and this shock must be seen or heard with the victims “own senses” rather than being told of it.

Later in Page v Smith, Lord Lloyd added that it should be reasonably foreseeable that a personal of “normal fortitude” might suffer psychiatric injury.

It is in these criteria that present the biggest injustices for secondary victims.

In relation to the close ties requirement, it was presumed that only parents and children, spouses and engaged couples possess such ties. For any relationship outside of these, the claimant must prove that such tie exist.

This means relationships between siblings were not presumed to fulfil this condition. So in the Alcock case, Brian Harrison was at Hillsborough and witnessed the crush in the Leppings Lane End knowing his two brothers who died were in that vicinity. He failed in his claim because of the lack of presumed close ties of love and affection, as prior to the case it was not known that such a bond needed to be proved. The lords also dismissed claims by grandparents for such a reason.

Clearly, attempts to codify degrees of love between people is problematic, and reveal the limits of law and the legal language.

Also in Alcock, the court decided the events causing the shock must be viewed with claimants own senses, meaning that they must perceive the events for themselves and not through a third party. This was primarily to prevent floods of claims from people who viewed the fateful game on television, as the match was being broadcast live.

This included the claim of Catherine Jones, whose fiancé was at the match and was killed in the crush; she watched the events unfold on TV after being informed about events by a friend. Her claim was denied because of this, and the lords added obiter that if you can recognise individuals with sufficiently close ties then that would be sufficient to claim, but due to the broadcasters’ code which prevents viewers seeing such distressing scenes, she was unable to recognise her fiancé in the scenes and there was a lack of proximity. Against this you have Hambrook v Stokes and W v Essex County Council where claimants were successful even though they were only told about the event, and did not view it with their own senses.

The position of rescuers throws up further inconsistencies in the law.

In Chadwick v British Transport Commission, a man became psychoneurotic following his efforts as a rescuer at the Lewisham train disaster in 1957. Chadwick helped pull survivors and bodies from the wreckage, and his estate was successful in recovering damages for the psychiatric harm he suffered before his death due to the threat of physical danger he encountered during the rescue.

Rescuers must be actively involved and not just bystanders. This principle comes from White, where police officers who helped with the rescue at Hillsborough were denied their claim because there was no threat of injury at the time. They attempted to claim as primary victims due to their employment relationship with the defendant and then as rescuers, but failed on both counts. Lord Hoffman said that by allowing the police officers to claim as rescuers it produces an unfair result by favouring the claims of the policeman over the bereaved families.

The Law Commission Report of 1998 recommended the abandonment of the requirements of proximity in time and space to the accident and the “own unaided senses” rule, and although the report was not implemented at the time, some years later the spirit of the reforms have been reintroduced thanks to a Private Members Bill proposed by Labour MP for Middlesbrough Andy MacDonald. The bill is making its way through the legislative journey through parliament; the Negligence and Damages Bill 2015-16 aims to do what incrementalism has failed to do.

The proposed act, if enacted, would abolish the requirements for close ties of love and affection, that the condition be induced by sudden shock, and proximity in time and space. The changes proposed within the bill would help to create a much fairer balance between claimants and defendants by removing many of the areas of controversy seen from the cases arising from the tragic events of Hillsborough.

The bill would make it much easier for claimants to establish a duty of care owed to them by the defendant. In relation to close ties of love and affection, s4 of the bill proposes to radically expand the list from spouses, plus parents and children, to include fiancés, civil partners, co-habitees, grandparents, aunts and uncles, and even friends and work colleagues. This effectively reduces the list of those who cannot recover to complete strangers so transfers the balance considerably in favour of the claimant in terms of fairness.

S5 of the bill removes further restrictions in relation to the establishment of a common law duty of care: s5(2) proposes removing the condition that the illness must be induced by a shock, potentially including those who develop a psychiatric injury having watched a loved one die slowly as a result of medical negligence. In addition to this, the need to be proximate in terms of time and space would also be abolished, meaning that the timelines established in cases like McLoughlin v O’Brien would be removed.

The claimants in Alcock would have had a much greater chance of success if this bill had been in place at the time, and is undoubtedly a step in the right direction in regards to making things fairer for claimants.

Many may argue that this tilts the balance too far back in the claimants favour and may open the floodgates to unmeritorious claims as well as encouraging the compensation culture which many think is growing in this country.

But you only have to look at the unfairness of the old common law rules arising from the Hillsborough tragedy to see that the proposed bill goes a long way to righting those wrongs for future claimants, even if it does not help the bereaved families from Hillsborough.

Mark O’Neill is a student at the Open University.

The post Psychiatric harm: The forgotten claims of the Hillsborough disaster appeared first on Legal Cheek.

As acknowledged by Lord Sumption in Woodland v Essex CC, the “English law has long recognised that non-delegable duties exist” but — as Sumption again points out — “it does not have a single theory to explain when or why.”

The doctrine dates back to the 19th century with cases such as Dalton v Henry Angus & Co — a case in which Lord Blackburn asserted:

… a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor.

Subsequent case law, like Honeywill and Stein v Larkin, has affirmed Lord Blackburn’s judgment, and in doing so established the foundations for the doctrine to grow.

Most notably, the doctrine received a wider interpretation in Lord Denning’s judgment in Cassidy v Ministry of Health — a case regarding the liability of doctors depending on the existence of a ‘contract of service’. In his judgment, Denning advocated that a different approach should be taken depending on the employer of the doctor. This ultimately led to his conclusion “that the hospital authorities are liable for [the doctor’s] negligence in treating the patient.” It does not, he said, “depend on whether the contract under which he was employed was a contract of service or a contract for services.”

Over the following year, this approach has been adopted in varying case law including Woodland and X v Bedfordshire CC, where judges have cited Denning’s reasoning and applied it in their judgments.

The judgments of Blackburn and Denning — in Dalton and Cassidy respectively — have paved the way for modern case law concerning the law on non-delegable duties, most recently with the case of Woodland, and the test formulated by Sumption. The test’s five limbs aimed to clarify the applicability of the doctrine for future cases:

(i) the claimant is a patient or child or some otherwise vulnerable or dependent person;
(ii) there is an antecedent relationship between the claimant and the defendant which puts the claimant in the care of the defendant and from which it is possible to assign to the defendant a positive obligation actively to protect the claimant from harm (as opposed to a duty simply to refrain from harmful conduct);
(iii) the claimant has no control over the defendant’s performance of that obligation;
(iv) the defendant has delegated some part of its function to a third party, who has assumed some custody or care of (and thus also some degree of control over) the defendant; and
(v) the third party has been negligent in the exercise of that delegated function.

Following the establishment of this five-pronged test, it has been successfully applied to circumstances including prisoners, as well as foster children (in JB and BB v Leicestershire CC (unreported)). Stout went as far as to assert that the “non-delegable duty of care thus now joins the ranks of approved bases for liability in negligence, alongside such established categories as the ‘normal’ duty of care, assumption of responsibility and vicarious liability”.

Others are more skeptical. George, for example, questioned the test’s clarity and whether it “operates effectively even in cases we can already see”. Such skepticism was actually also demonstrated by Lady Hale in her concurring judgment in Woodland, as she highlighted “that such judicial statements are not to be treated as if they were statutes and can never be set in stone”.

The most recent case to deal with the issues surrounding the application of the doctrine is NA v Nottinghamshire Council. In his judgment, Males J found that even though the Sumption test was satisfied, he did not find it fair, just and reasonable to impose a non-delegable duty of care on the authority. The appeal by the claimant was dismissed in the subsequent Court of Appeal case, and on the topic of the applicability of non-delegable duties, Lady Justice Black admitted “the whole question… [is] difficult in this case”.

The Sumption approach is no doubt a solid first step to achieving a clearly applicable test. However, future judgments need to clarify the test’s reach, by either amending the Sumption test or formulating a list of applicable circumstances, as seen in the Australian case of Leichhardt Municipal Council v Montgomery.

Omar Alami is a final year law and French student at the University of Bristol.

Sources

Rob George, ‘Case Comment: Non-delegable duties of care in tort’, The Law Quarterly Review 2014

Holly Stout, ‘Case Comment: Schools’, Education Law Journal 2014

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The law on libel has proved a hot topic of discussion since the turn of the decade.

Defined as publishing a written statement that is damaging to a person’s reputation, libel can give way to penalties in the civil courts if a successful claim is advanced.

The campaign for important and wide-scale libel reform has chugged on for four years, since the ‘The Libel Reform Campaign’ was founded in 2009. Activists have pushed for a cheaper, simpler, and more modern law on defamation than the piecemeal approach advocated pre-reform. The Defamation Bill 2012 was the first time wholesale reform had been debated in parliament since the mid 19th century.

Problems with the old law were innumerable: the risk of trivial claims; the use of libel laws to stamp on sensible discussion; and the lack of clear statutory defences are just a few of the long list.

This campaign has culminated in the Defamation Act 2013, which came into force from 1 January 2014. This statute has — according to the Ministry of Justice anyway — reversed “the chilling effect on freedom of expression” that the past libel law allowed.

It’s now considerably harder for a claimant to bring an action in defamation, signalling a nod to freedom of expression and public debate, whilst diminishing a person’s right to a reputation.

So how has the law changed, and has it changed for the better?

S1 of the Defamation Act 2013 has slotted in a new provision of “serious harm”. A statement will not be considered defamatory unless it has caused, or is likely to cause, serious harm to the claimant’s reputation. This section raises the bar and sets an additional hurdle for a claimant to overcome if he wants to be successful. S1 means that trivial claims can be struck out early.

What this section has also done, however, is made it much more difficult for companies to sue, as s1(2) defines “serious harm” for the purposes of a company’s reputation as something that causes or is likely to cause them “serious financial loss”. Timothy Pinto — from Taylor Wessing — predicts that defendants will now be braver about criticising companies, and that more actions will instead be brought by individuals associated with the company, so as to circumvent the extremely high threshold set for companies by s1(2).

S3 replaces the previous defence of fair comment with the newly coined defence of honest comment. This defence protects honest people and their right to express an opinion, however bizarre or exaggerated this opinion may be. This defence is more favourable to defendants than was so under the old law, excluding the previous requirement for the opinion to be on a matter of public interest — so who knows what tabloid gossip will now be caught and protected by s3.

The public interest requirement has been shuffled along into s4 of the Act, creating a new statutory defence entirely. Based on the common law defence established in Reynolds v Times Newspapers, the defence is a flexible mechanism for protecting defendants whose statement was made as a matter of public interest. Doing away with a number of hoops from the common law test, the success of the defence boils down to the defendant’s “reasonable belief” — clearly a very subjective indicator.

A lot has changed, but it’s impossible to draw a conclusion on whether if this is for better or worse.

Case law is thin on the ground, so only a few conclusions can be drawn. The Act very much pushes for the respect and the importance of freedom of expression and free speech, to the detriment of claimants who will now find it much harder to push their claims through the court. It’s companies that have lost out the hardest. Shackled by s1(2), the UK looks set for a new wave of libel actions whereby individual workers at the company are named, as opposed to the company’s name itself.

Beth Grant is a final year law student at the University of Sussex.

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