Compass Reparation Members:
Iain Armstrong QC
Ian Mackay QC
Susan O'Brien QC
Andrew Smith QC
Geoff Clarke QC
Robert Milligan QC
Barry Divers
Malcolm McGregor
Peter Milligan
David Sheldon
Astrid Smart
Calum Wilson
Kay Springham
Robin Cleland
Amber Galbraith
Steve Love
David McNaughtan
Graeme Middleton
Barry Smith
Craig Thomson
Yvonne Waugh
Craig Murray
Richard Pugh
Gavin Thornley
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace MacRae
|
DOES CRIME PAY?
(Gray v Thames Trains [2009] UKHL 33)
On 17 June 2009 the House of Lords issued its Judgement in the latest in a line of cases considering issues of causation and remoteness of loss in reparation actions. Mr Gray was a victim of the Ladbroke Grove train crash on 5 October 1999. His physical injuries were minor, but he also suffered severe post traumatic stress disorder. As a result, on 19 August 2001, following an altercation, he stabbed and killed a Mr Boultwood – who had drunkenly stumbled in front of his car. Mr Gray pleaded guilty to manslaughter on the grounds of diminished responsibility, and was detained in hospital. He raised an action for damages for inter alia his loss of earnings during the time of his detention.
Mr Gray was unsuccessful at first instance. In the Court of Appeal it was held that the rule contained in the maxim ex turpi causa meant that Mr Gray couldn’t recover general damages for his detention but he could, in principle, recover his loss of earnings after the date of the homicide. Both parties appealed to the House of Lords. The Court of Appeal had spent a considerable part of their judgement dealing with the (then still new) decision of the House of Lords in Corr v IBC Vehicles [2008] 1 AC 884 concerning recoverability of damages for suicide. In large part they felt that many of the same arguments would arise as to the case of culpable homicide where the homicide was due to the psychiatric injury.
Their Lordships in the House of Lords focussed much more plainly on the public policy aspects of recoverability rather than only upon the questions of causation, remoteness and forseeability. They focussed on whether the law should allow recovery of damages for a period of detention imposed by a court. It was acknowledged that the fact that the killing was a voluntary and deliberate act did not itself exclude the possibility of liability resting on Thames Trains; but that the policy behind the maxim ex turpi causa did prevent recovery. There was some disagreement between their Lordships as to the extent of the doctrine’s applicability depending on the seriousness of the mental condition, but that did not exclude them finding that Mr Gray had retained sufficient capacity. They ultimately upheld the defendant’s appeal.
A PDF of the judgement can be found at:
http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090617/gray.pdf
DAMAGES (SCOTLAND) BILL 2009
This consultation paper has been produced in relation to a proposal by Bill Butler MSP to introduce a Member’s Bill in the Scottish Parliament in response to the Scottish Law Commission’s Report on Damages for Wrongful Death. The Commission reported on the issue in September 2008, concluding that certain aspects of the law contained in the Damages (Scotland) Act 1976 no longer reflected financial reality.
The Commission produced a draft Damages (Scotland) Bill 2009. The effect of the Bill would be to repeal the 1976 Act and re-enact it, with certain changes. Amongst the most important amended provisions are:
(i) The fixing of method of calculation (including a deduction of 25% to represent reasonable living expenses) for a victim’s patrimonial loss claim in respect of the lost years;
(ii) The fixing of a method of calculation (including disregarding a surviving spouse’s income and a fixed deduction of 25%) for a loss of support claim for surviving relatives;
(iii) Creating a consistent group of relatives who can claim for both financial loss and for a “grief and companionship” award – rather than having relatives who may be in one category but not another;
(iv) The express exclusion of damages for “mental disorder” from awards under s.1(4) of the 1976 Act (or the new equivalent); and
(v) The extension of awards for s.9 services during the lost years.
The Consultation Paper asks a number of questions concerning the Bill and its recommendations. The Bill is undoubtedly a wide-ranging and important review of current law and practice. Practitioners are invited to respond prior to 26 October 2009.
The Consultation Paper can be found at:
http://www.scottish.parliament.uk/(...)ConsultationPaperFinal20090730.pdf
PRE-LITIGATION ADMISSIONS OF LIABILITY
An Extra Division of the Inner House recently issued its Opinion in the reclaiming motion in Van Klaveren v Servisair UK Ltd, recalling the previous ruling of Lady Clark of Calton, which held that a pre-litigation admission of liability by insurers in a personal injuries case had amounted to a binding agreement between the parties, which could not be withdrawn after proceedings were raised. The Lord Ordinary rejected the argument that the admission – namely, that “We accept that our Insured is liable for the purposes of the claim, and will pay damages, to be assessed when we receive details of the claim. We will also be paying your costs in accordance with the Civil Procedure Rules.” – was simply extra-judicial, was not binding and could be withdrawn prior to the closing of the Record.
The question of importance for the Inner House was the correct categorisation of the admission - examining its actual terms, the conduct of the parties before and after its making and the whole circumstances of how and when it was made – as either (i) a bilateral agreement concluded between the parties (ii) a unilateral obligation by the insurers, or (iii) an extra-judicial admission. The first two are binding. The third, not necessarily so.
Relying on existing authority and textbooks, the Court noted that :
(a) the wording of the admission was as one would expect in an extra-judicial scenario, there being no question of any offer or subsequent acceptance, or of the sort of clear wording necessary to establish a unilateral obligation;
(b) the admission had been made at a relatively early stage, before the claim had been fully investigated; and,
(c) quantum of damages (including causation) and the issue of expenses had not been resolved, making enforcement by way of specific implement difficult, if not impossible.
Accordingly, the admission was capable of being withdrawn prior to the Record closing. It may, of course, be arguable that pre-litigation admissions given in different circumstances e.g. where liability and quantum investigations are complete and the “offer” is promptly noted and “accepted” by a Pursuer, might be binding in subsequent proceedings.
http://www.scotcourts.gov.uk/opinions/2009CSIH37.html
IT’S A DOGS’S LIFE!
The Inner House also recently opined in the well-publicised case of Welsh v Brady, in which the Pursuer, out walking her dog “Cava”, was knocked over and badly injured by another dog, called “Ebony”. In one of the few decisions in recent years on the strict liability regime imposed by the Animals (Scotland) Act 1987 – whose structure is sometimes thought to be rather confusing - the Court took the view that once its structure is sorted out, its interpretation and application are straightforward.
On the assumption that the relevant “keeper” has been sued, the route to follow is :
(i) identify the “species” of animal under consideration e.g. by reference to its variety, age or sex; then,
(ii) ask whether the members of that species are generally “likely” to cause severe injury or substantial property damage – the Court not deeming it necessary to define “likely”; then,
(iii) identify the actual “physical attributes or habits” of the species giving rise to such a propensity; and finally,
(iv) ask whether the injury or damage has been directly caused by those habits – noting that a propensity to injure will not assist in a property damage claim, and vice versa.
Every case is, of course, fact-dependent, but the Court has very usefully laid out the generally-applicable template for strict liability.
http://www.scotcourts.gov.uk/opinions/2009CSIH60.html
STOP PRESS!
Dorothy Munro v Aberdeen City Council [2009] CSOH 129 This is an important decision for the application of regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 to transient hazards. Lord Malcolm held that the regulation does not apply to ice on a car park, confirming the long-standing distinction between structural hazards, where strict liability applies, and transient hazards, where the defenders have a defence of reasonable practicability. To hold otherwise would be to deprive regulation 12(3) of any content.
http://www.scotcourts.gov.uk/opinions/2009csoh129.html
|
Compass Chambers