Frank Burton QC has been published in the Supreme Court Yearbook for 2016 in an article dealing with cases in the fields of personal injury, vicarious liability and the law of tort. Frank was leading counsel in 2 of those cases, Knauer v Ministry of Justice and Kennedy v Cordia.
The UK Supreme Court Yearbook, Volume 7
Personal Injury, Vicarious Liability and the Law of Tort
Frank Burton QC
In the 2015–16 legal year, the UK Supreme Court (‘the Court’) delivered seven judgments concerning personal injury actions[1] and two further cases involving other areas of the law of tort.[2]
PERSONAL INJURY TORTS
Kennedy v Cordia saw the Court unanimously allow an appeal from the Scottish Inner House, restoring the first instance judgment of the Lord Ordinary in respect of a slipping accident on ice by a peripatetic care worker. The breach of statutory duty claim succeeded in respect of a failure to provide non-slip attachments to footwear pursuant to the Personal Protective Equipment at Work Regulations 1992. The first instance decision in common law negligence was also restored and the court made significant comments on the role of risk assessments in the law of negligence. This gave the judgment particular importance as the first employer’s liability action to be considered by the Court after the coming into force of section 69 of the Enterprise and Regulatory Reform Act 2013, which abolished most civil causes of action arising out of breaches of statutory duties in employer liability actions. The court also analysed the role of the expert witness in civil actions by discussing issues of admissibility, the responsibility of lawyers to ensure experts conformed to their role, the duty of the court to police expert evidence and the economic use of expertise in litigation.[3]
In Knauer v Ministry of Justice, seven justices invoked the Practice Statement (HL: Judicial Precedent)[4] to reverse the longstanding rule that multipliers in Fatal Accidents Act 1976 cases should be fixed at the date of death as laid down by the House of Lords in two decisions in Cookson v Knowles[5] and in Graham v Dodds[6] to substitute a new rule that, as is in personal injury cases, the multiplier should be fixed at the date of trial.[7] The Court had no hesitation in invoking the Practice Statement where the prior rule was clearly illogical, gave rise to significant under-compensation and led to judicial attempts to distinguish cases on dubious legal grounds. The prior rule had also been the subject of trenchant criticism from judges, practitioners, the Law Commission and the Ogden Working Party. The case illustrates the extreme difficulty of achieving reform through the common law as insurers regularly bought off attempts to appeal the old rule during the period 2002–16. The main reason why the case came to heard was due to the steadfast commitment of Mr Knauer who refused to accept open offers to him of the full monetary value of the difference in calculation between the two dates in issue as he was committed to ensuring the principle was examined by the Court.
In Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets, the Court gave judgments in two important decisions dealing with the doctrine of vicarious liability.[8] The judgments, delivered separately but with argument heard simultaneously, reaffirmed the close connection test as set out in Lister v Hesley Hall Ltd concerning the liability of an employer for the acts of his employees.[9] In Mohamud, the essence of the test was said to be to consider what functions had been entrusted to the employee by the employer and whether there was a sufficient connection between the employee’s wrongful behaviour and the position in which he was employed.[10] This was established in Mr Mohamud’s case where Mr Mohamud had been subjected to a racist rant followed by a violent assault from a petrol station kiosk attendant after he had asked if it would be possible to print documents from a USB stick. In Cox, the decision of the Court was to extend beyond the employer/employee relationship the doctrine of vicarious liability to the Prison Service for the negligent act of a prisoner working in a prison kitchen who dropped a heavy bag of rice on a catering manager’s back.[11] Cox affirmed the decision in Various Claimants v Catholic Child Welfare Society where the test for the imposition of liability on a non-employer was: whether the tort had been committed as a result of activity undertaken by the tortfeasor on behalf of the Defendant where the activity was integral to the Defendant’s enterprise, the risk of a tort arose from the activity and it was fair, just and reasonable to impose liability.[12] Cox determined that there was no need for the enterprise activity to be for profit. It is likely that the effect of these two decisions will be to bring more clarity and certainty to the scope of the doctrine of vicarious liability in future actions.
However, less certainty is likely to arise from the judgment in Hayward v Zurich Insurer Co plc, where insurers had settled a personal injury action for £134,973 on the basis of continuing disability even though they had suspected fraud concerning the real extent of the injury.[13] The Court set aside that agreement on the basis of fraudulent misrepresentation in circumstances where the insurers, after compromising the claim, discovered proof of fraud provided by the Claimant’s neighbours who gave evidence that the Claimant in fact had long recovered from his personal injury. The central issue concerned whether it was necessary for the Defendant to have believed that the deceitful representation concerning continuing injury was true so that the insurers were induced to settle the claim. The court found that it was not necessary for the representee to believe the representation was true. The representee’s state of mind was highly relevant to the fact of inducement because if the representee did not believe the representation was true it might be difficult to prove the representee had been induced to enter a contract of agreement because of that representation. However, in Hayward, the insurer’s position was that, although they did not credit the Claimant’s veracity because of video evidence they had seen, they feared that a court may have taken a different view of the evidence as a whole and award a higher level of damages than they would have deemed appropriate for what they believed was the real level of injury. The Court held that the trial judge was justified to hold this was a sufficient inducement to enter into the settlement agreement. The trial judge awarded £14,720 damages on the level of injury he found had actually been caused in the accident. One possible outcome of this decision is that insurers will continue surveillance after they have settled personal injury actions where they retain doubts on the Claimant’s veracity but have been unable to prove to the requisite standard that the Claimant has been exaggerating or deliberately fabricating the level of his disability.
In Moreno v Motor Insurers’ Bureau, the Court reversed the line of authority set out in the Court of Appeal decisions in Jacobs v Motor Insurers’ Bureau[14] and Bloy v Motor Insurers’ Bureau[15] to the effect that claims brought against the Motor Insurers’ Bureau for personal injury arising out of road traffic accidents abroad under the Motor Vehicles (Compulsory Insurance) (Information Centre & Compensation Body) Regulations 2003 require the measure of damages to be calculated in accordance with English law.[16] Before Moreno the issue of primary liability and the issue of what heads of claim were recoverable were determined by the foreign applicable law but the measure of loss was determined by the English law of damages. Moreno has now held that the proper construction of the 2003 Regulations, so that they are consistently interpreted with EC motor directives,[17] requires that the applicable law on all issues of liability and of damages is to be the law of the state where the accident occurred. This determination is likely to resolve in substantially lower levels of damages for Claimants in most cases and certainly in the case of Ms Moreno who sustained a leg amputation while on holiday in Greece. The current political uncertainty arising out of the intention of the UK to leave the EU was noted by Lord Mance who stated in the single judgment of the court: ‘With British exit from the Union, this will, no doubt, be one of the many current arrangements requiring thought.’[18]
In the Scottish case of Campbell v Gordon the court dismissed the appeal of an apprentice injured whilst operating an electric saw who sued directly the sole director of his employing company for failing to provide employers’ liability insurance contrary to section1(1) of the Employers’ Liability(Compulsory Insurance) Act 1969. Mr Campbell had succeeded at first instance but his case was dismissed by a majority of the Inner House Giving the judgment of the majority Lord Carnwath ,with whom Lord Mance and Lord Reed agreed , stated that the Act had imposed a specific criminal liability on a director responsible for failing to insure and it was not possible to pierce the corporate veil to also impose a civil liability unless it was expressly or impliedly justified by the statute. The majority accordingly preferred a formalistic construction of the statute contrary to the minority ( Lord Toulson and Lady Hale ) who would have allowed the appeal , inter alia, on the basis that looking at the objective of the statute, namely to protect employees and applying a functional approach to interpretation it was clear there was a Parliamentary intention to impose civil liability.
NON-PERSONAL INJURY TORTS
In PJS v News Group Newspapers, the Court permitted the continuation of an interim injunction restraining publication of a story concerning the extra marital sexual activities of a celebrity’s partner.[19] The celebrity was married with young children and the partner, also well known, had allegedly engaged in sexual activity with a couple who approached the Sun on Sunday seeking to sell their story. The editor notified PJS of his intention to publish and PJS sought an injunction to prevent a breach of confidence and an invasion of his and his family’s privacy. Subsequently, the story was published by a magazine in the United States and by newspapers in Canada and Scotland. The story also received notoriety when it was widely disseminated on numerous websites and social media hashtags. The Court accepted that publication of purely private sexual encounters could constitute the tort of invasion of privacy and repetition of such a publication was capable of constituting a further tort especially if it occurred in a different medium. On the facts of the case the Court held that further publication, in the context of potential harm to the children, would result in a serious and injurious invasion of privacy. The Court noted that at trial it remained open for the newspaper to seek to show a genuine public interest in publication which it had failed to date to do so.
Finally, in Willers v Joyce, a nine strong court divided 5:4 in allowing the Claimant’s appeal permitting his cause of action to proceed in respect of a malicious civil, as opposed to a criminal prosecution. The Claimant brought an action based upon his loss of reputation, health and earnings against the Defendant who had initiated proceedings against him for breach of contract and fiduciary duty, which the Claimant alleged was done without reasonable excuse. The Defendant in the first action abandoned his case shortly before trial and the Claimant was awarded costs. In the Claimant’s subsequent case for malicious prosecution the first instance judge struck out the case on the basis that English law, following the House of Lords’ decision in Gregory v Portsmouth City Council,[20] did not recognise such a cause of action. The first instance judge said she was unable to follow a subsequent Privy Council decision, Crawford Justice (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd,[21] where such cause of action had been found to exist, albeit by a 3:2 split.
In Willers, Lord Toulson gave a leading judgment with which Lady Hale, Lord Kerr and Lord Wilson agreed.[22] Lord Clarke’s judgment also agreed with Lord Toulson.[23] Lord Toulson analysed the historical background to the extensive jurisprudence and concluded that it would be unjust for a person to suffer injury as a result of a malicious civil prosecution and yet not to be entitled to compensation where there was a remedy in circumstances where the wrong arose out of a criminal malicious prosecution. Lord Toulson dealt with the countervailing arguments against the imposition of a cause of action including the risk of floodgates, the potential deterrence of a valid claim whereby litigants may be faced with subsequent malicious prosecution claims, the apparent inconsistencies with witness immunity from civil liability, the absence of a duty of care by a litigant to an opposing party, whether such torts should be limited to those exercising the coercive power of the state and the uncertainty of proving malice. Lord Toulson determined that those legal and policy matters did not outweigh the simple justice of permitting a remedy. In powerful dissenting judgments Lord Mance, Lord Neuberger, Lord Sumption and Lord Reed indicated why they, in Lord Sumption’s words, felt that such a cause of action was: “unwarranted by authority, unjustified in principle and undesirable in practice”.[24] It is to be expected that future claims for malicious prosecution arising out of civil actions will require significant further judicial determination particularly concerning the issue of the damages recoverable in the tort.[25]
In a second, connected, judgment,[26] the Court unanimously clarified the role of decisions by the Judicial Committee of the Privy Council (‘the Privy Council’) concerning the law of precedence. The Court decided that decisions of the Privy Council could not be binding on any judge in England and Wales and could not therefore override any decision, which would represent a binding precedent on such a judge. This was an absolute rule. However, if the decision by the Privy Council decided that an existing UK Supreme Court decision, a previous decision of the House of Lords or a previous decision of the Court of Appeal of England and Wales was in fact wrong it could direct that the domestic courts in England and Wales should treat its decision as representing the law of England and Wales. The two decisions in Willers, accordingly, constitute landmark judgments concerning both the substantive law of malicious prosecution and the methodology of legal precedent.
