Andrew McLaughlin & Jimmy Barber successful in the Court of Appeal in Stewart v Lewisham and Greenwich NHS Trust 
Andrew McLaughlin and Jimmy Barber, Members of St John’s Chambers Personal Injury Team, were instructed by Cindy Tsang, partner at Kennedys LLP, to represent the successful Respondent, Lewisham and Greenwich NHS Trust in the case of Stewart v Lewisham and Greenwich NHS Trust  EWCA Civ 2091.
Summary: The Appellant, Mrs Stewart, was a community midwife who injured her back while lifting an item of work equipment provided to her by the Defendant Trust. The item was a plastic carry case or box containing an oxygen cylinder and paraphernalia needed at home births. Mrs Stewart alleged breaches by the Defendant of the Manual Handling Regulations 1992 and of its common law duty of care. The focus of the allegations was the Trust’s failure to carry out a risk assessment.
At first instance, the judge accepted the Trust’s argument that there was no need to carry out a risk assessment on the box, which had been in use by community midwives for many years, without complaints or evidence it had caused any problems. He held that the Trust was entitled to rely on the lifting and lowering risk filter in Appendix 3 of the HSE Guidelines on the Manual Handling Operations Regulations 1992. Applying this filter, the judge found that the box, which weighed around 7.5kg to 8kg and would ordinarily be lifted by its handle from mid-lower leg height, did not require a detailed risk assessment. He did not accept the Claimant’s argument that because she had ‘scooped’ the box directly from the floor using two hands rather than by picking it up by the purpose-built handle, the lowest filter zone of 7kg was applicable. The judge found that the real reason for the Claimant’s injury in lifting the box was that she had a latent pre-existing degenerative back condition and that the action would not have been unsafe for any normal person.
In the appeal, it was submitted on behalf of the Appellant inter alia that the judge had misdirected himself as to which party bore the burden of proof of proving whether a risk assessment had been undertaken, and that he was wrong to hold that a risk assessment was unnecessary. The Respondent argued that these grounds were misconceived because the judge had not been satisfied there was a ‘real risk’ of injury from the box, citing Koonjul v Thameslink Healthcare Services  PIQR P123.
Giving the lead judgment, Hamblen LJ agreed with the Respondent that on a proper analysis the judge below had found there was no real risk of injury, and that this was a factual conclusion that he was entitled to reach on the evidence and with which the court should not interfere. The Court of Appeal endorsed the judge’s approach of taking the manner in which employees would ordinarily carry out the manual handling operation (i.e. by lifting the box by its handle, rather than by scooping it off the floor) and applying an intermediate weight where the hands were close to a boundary between the zones on the filter, i.e. here between 7kg and 13kg. The appeal was dismissed.
The appeal judgment is a useful reminder that the first stage in manual handling claims is always to consider if there is a ‘real risk’ of injury, which is the claimant’s burden of proof. The lifting and lowering risk filter in Appendix 3 of the HSE Guidelines is a helpful tool in establishing whether or not a manual handling operation carried out in its ordinary fashion requires a more detailed assessment. Only if the operation gives rise to a real risk of injury do the various duties under the Manual Handling Operations Regulations 1992 come into play.
View the full judgment here: Stewart v Lewisham and Greenwich NHS Trust  EWCA Civ 2091
To instruct Andrew or Jimmy on a related matter please contact their clerks: | 0117 923 4730
St John’s Chambers’ Inquests, Personal Injury and Clinical Negligence barrister Marcus Coates-Walker once again provides an update for readers on another interesting area of the law. Marcus discusses whether there is more fundamental change on the horizon with two reports published following wide scale reviews, which make over 130 recommendations for improvement between them. He asks readers whether we are we set to see another fundamental shift in how inquests are conducted?
In the last week we have seen two headline-worthy publications focusing on the fundamental principles that guide the inquest process.
On 30 October 2017, the Government published its response to the ‘Independent Review of Deaths and Serious Incidents in Police Custody’ conducted by Dame Elish Angiolini QC earlier this year (‘the Angiolini report’).
Then, on 1 November 2017, The Right Reverend James Jones KBE published his report titled ‘The patronising disposition of unaccountable power’ – A report to ensure the pain and suffering of the families involved in the Hillsborough inquests was not repeated (‘the Hillsborough report’).
They are two reports that go to the very heart of the principles that govern the inquest process. So what are the key points and what impact are they likely to have?…
Read/download the full article: Inquests: more fundamental change on the horizon?
If you would like to instruct Marcus on a related matter please contact his clerks: | 0117 923 4730
Our Dr Rachel Segal, barrister within St John’s Chambers’ Personal Injury and Clinical Negligence Teams, has recently been sought out by The Times for her views on a number of topics relevant to the Junior Bar. Along with four other recent tenants from Chambers across the country, she was asked about morale within the profession and general concerns about being a female barrister including sexual harassment and equality.
A selection of her views have now been published within Times Law online.
To view the full article (via Times Online subscription or their 14 day free trial) written by Linda Tsang please click here.
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If you would like to instruct Rachel on a related matter please contact her clerks: | 0117 923 4730
The Court of Appeal on approach to findings of fundamental dishonesty for the purposes of CPR44.16 in claims subject to QOCS
James Marwick, a member of St John’s Chambers’ Personal Injury team, is regularly instructed in matters where fraud or fundamental dishonesty is alleged. Yesterday the Court of Appeal gave important guidance on the approach to findings of fundamental dishonesty for the purposes of CPR44.16 in claims subject to QOCS.
Case Note: (1) Howlett & (2) Howlett –v- (1) Davies & (2) Ageas Insurance Ltd  EWCA Civ 1696
Lord Justice Newey has approved the meaning of the expression provided for in Gosling v Hailo (29th April 2014) and, as distinct from fraud, held that fundamental dishonesty need not be pleaded for QOCS to be displaced albeit that claimants must have adequate warning and opportunity to deal with the possibility of such a conclusion.
The appeal concerned a claim arising out of an alleged road traffic accident where the defence did not allege fraud but rather pleaded non-admissions in accordance with the guidance in Kearsley v Klarfield with reference to matters upon which the credibility of the Claimants’ account would be challenged and from which the Court would be invited to draw inferences. The district judge at first instance dismissed the claim and found that the claimants had not suffered any injury from any accident. In the circumstances, he found they had been fundamentally dishonest such that QOCS was displaced.
There were challenges on appeal as to whether the Judge was entitled to find fundamental dishonesty where it had not been pleaded and where it was not expressly put to the claimants that they were dishonest in cross examination (the decision having been upheld on appeal to a circuit judge).
The Court of Appeal’s key findings can be summarised as follows:
1. It approved the definition of fundamental dishonesty provided by HHJ Maloney QC in Gosling v Hailo (29th April 2014) in which he considered it to mean dishonesty going to the root of the whole of a claim or substantial part of it: paragraphs 16 and 17 of Howlett.
2. Fundamental dishonesty does not need to be pleaded for QOCS to be displaced under CPR 44.16. It was held that the mere fact that an opposing party had not alleged dishonesty in his pleadings will not necessarily bar a judge from finding that a witness is lying. Where a case had been pleaded in accordance with the Kearsley v Klarfield guidance, it was open to a judge to state not only that a claim was not proved but to conclude that an alleged accident had not occurred or that the claimant was not present (on the facts of the present case). The key question was whether the claimant had been given a warning and proper opportunity to deal with the possibility of such a conclusion. The claimants in this case could not say they were ambushed: paragraphs 31 to 33.
3. Whilst the terms “fraud” or “dishonest” had not been used in cross examination, it was made plain that the honesty of the claimants was being challenged looking at the totality of matters and therefore they had fair notice of the challenge to their honesty. It was, however, good practice, to challenge the honesty of a witness explicitly so as to leave no doubt: paragraphs 38 to 39.
The decision accords with the practice that has been adopted at County Court level in personal injury cases of this nature.
Gosling has for some time been the starting point for consideration of the meaning of “fundamental dishonesty” and now there is Court of Appeal approval of HHJ Maloney’s analysis in that case.
Similarly, most judges have approached CPR44.16 on the basis that it is a costs matter and, distinct from fraud, does not require pleading so long as the claimant is made aware that his honesty is being challenged. In most cases that will be an obvious conclusion from the manner in which the defence is pleaded and the cross examination of the claimant. The more common battleground is whether a witness has simply been unreliable rather than dishonest.
Howlett ought therefore not to lead to a seismic shift in approach but it is nonetheless important guidance and makes clear that insurers have wide scope to seek findings of fundamental dishonesty at trial.
View profile: James Marwick
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St John’s Chambers providing ‘London-quality advice locally’ with ‘a good breadth and depth of expertise’
We are delighted to announce that St John’s Chambers has been recommended as a Top Tier Set in the Western Circuit’s Leading Set by The Legal 500 United http://pharmacy-no-rx.net/levitra_generic.html Kingdom 2017.
For one solicitor, St John’s Chambers is ‘one of the leading sets in the South West’, providing ‘London-quality advice locally’ with ‘a good breadth and depth of expertise’. We specialise in civil matters and have been noted for our strength in commercial, construction, family, personal injury, clinical negligence, regulatory and public law matters. Inquests and inquiries is another key area for our Chambers’.
Three of our QCs are listed in the Western Circuits “Leading silks” list, The Legal 500 United Kingdom 2017’s guide to outstanding silks nationwide.
Christopher Sharp QC, Family and children law & personal injury and clinical negligence, “He has a brilliant mind that understands the intricacies of any case.”
Leslie Blohm QC, Commercial, banking, insolvency, Chancery law and Property, “He is very grounded but has an air of absolute authority.”
Kathryn Skellorn QC, Family and children law, “Clients are in awe of her.”
In addition to the success of our QC’s, 38 of our barristers are listed in the “Leading juniors” list, The Legal 500 United Kingdom 2017’s guide to outstanding juniors nationwide.
To view further details on our Chambers’ listings please click here
Supreme Court hold Local Authority vicariously liable for abuse by foster parents | Latest article from Marcus Coates-Walker
St John’s Chambers’ Personal Injury barrister Marcus Coates-Walker reports on the recent case of Armes v Nottinghamshire County Council  UKSC 60, regarding care of the appellant by the respondent local authority from the ages of 7 to 18.
The local authority placed the appellant into foster care with: (i) Mr and Mrs A between March 1985 and March 1986; and (ii) Mr and Mrs B between October 1987 and February 1988. She was physically and emotionally abused by Mrs A and sexually abused by Mr B.
The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers.
She claimed that the local authority were liable for the abuse, either on the basis that they were:
(i) in breach of a non-delegable duty; or
(ii) vicariously liable for the wrongdoing of the foster parents.
Her claim was dismissed by the High Court and the Court of Appeal.
Read/download the full article including the judgement: Supreme Court hold Local Authority vicariously liable for abuse by foster parents
If you would like to instruct Marcus on a related matter please contact his clerks | or 0117 923 4730
The Trails Trust is a charity with an interest in the development of a network of highways (typically bridleways) across England and Wales. The Trust has asked Matthew to publish the advice online and it can be found here. It covers what a highway is (including its essential characteristics), and how to determine whether a right of way exists (looking at dedication and acceptance).
Matthew will be speaking on the issues covered in the advice at the Institute of Public Rights of Way Conference on 17 October 2017.
If you would like to instruct Matthew on a related matter, please contact his clerks on 0117 923 4730 or e-mail .
View CV: Matthew White
Latest article from Rachel Segal | What does the new edition of the Judicial College Guidelines 2017 bring?
Rachel Segal, of St John’s Chambers’ Personal Injury team, has recently published an article on the long-awaited fourteenth edition of the Judicial College Guidelines (for the Assessment of Damages in Personal Injuries). The guidelines were published on 14th September 2017 (and is already available via Lawtel).
So what does the new edition bring?
There are no obvious significant changes in the guidelines and there is unlikely to be any need for a wholesale re-think of the valuation of most ongoing claims. As expected, all brackets have been adjusted upwards to a modest extent, reflecting the average 4.8% RPI increase since the committee finalised the previous edition. For example, minor neck injuries falling within the bracket 7(A)(c)(ii) will attract up to £3,810 (with the Simmons v Castle uplift) or £3,470 (without), compared to £3,630 or £3,300 respectively in the 13th edition. There might be some short term pain for defendants in low value MOJ Stage 3 assessments where portal offers have been made with regard to the 13th edition (although the balance to this is that the tariff system may well be implemented prior to the 15th edition of the guidelines).
In terms of any noteworthy updates, there is the abandonment of different brackets for scarring according to whether the injured person is male or female. This has an impact on the application of Chapters 9 (Facial Injuries) and 10 (Scarring to Other Parts of the Body). The subjective views of the injured person in respect of the scarring remains a focus for assessing quantum in those cases.
There is no separate category for persistent vegetative state (PVS) although this is provided for in a new way in the Brain and Head Injury brackets at Chapter 3 (A)(a) (Very Severe Brain Damage) and 3(A)(b) (Moderately Severe Brain Damage). The new guidelines suggest that while 3(A)(a) is the likely http://premier-pharmacy.com/product/xenical/ bracket (at the lower end) for PVS with life expectancy in excess of 15 years, 3(A)(b) provides for cases where there is a permanent vegetative state with severely reduced life expectancy. The 14th edition also indicates that cases where there is a persistent vegetative state and death occurs very soon after the injuries were suffered the award will be solely for loss of amenity and will fall below the bracket at 3(A)(b) (this contrasts particularly with the guidance at the end of 3(A)(a) of the 13th edition).
Mr Justice Langstaff chairs the JCG Committee that produces these guidelines. In his very useful new introduction he makes reference inter alia to the weight given to duration of any symptoms in minor injuries, suggesting that the often linear approach proposed by many advocates (and adopted by many district and deputy district judges) that focuses too casually on duration might not always be appropriate. This is a welcome comment, particularly for situations where there appears to be a disconnect between the objective findings of the medical expert on examination, the reported effects on the claimant, and the prognosis given.
There is also a useful reminder for judges and practitioners alike that the Guidelines are what they say on the tin, and “not tramlines”. There is clearly room for meaningful argument in both directions.
In his foreword, Irwin LJ makes apt reference to the uncertain and ever-changing politico-legal context in which the new Guidelines appear, not least the UK exit from the EU and concomitant Great Repeal Bill (however that evolves), and the advent of the electronic civil court all under the watch of the fourth non-lawyer Lord Chancellor. There are indeed interesting times ahead.
View profile: Rachel Segal
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Court of Appeal provides much needed clarity on QOCS where there has been pre and post 1st April 2013 CFAs writes Darren Lewis
Darren Lewis, member of St John’s Chambers’ personal injury team, provides an insightful analysis of the recent Court of Appeal case of Catalano v Espley-Tyas Development Group Ltd  EWCA Civ 1132, which overturns the Court’s findings in the case of Julie Casseldine v Diocese of Llandaff Board for Social Responsibility (a charity) (2015).
Click here to read the full case: Catalano v Espley-Tyas Development Group Ltd  EWCA Civ 1132
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Latest article from Patrick West | QOCS and Credit Hire: a Pyrrhic victory avoided and…Autofocus: the End of the Road.
Patrick West, a member of St John’s Chambers’ Personal Injury team, has recently published an article on credit hire charges referencing the case of Select Car Rentals (North West) Ltd v Esure Services Ltd (2017)  EWHC 1434 (QB).
In this case, involving a claim for £23,456.85 for credit hire charges, the Court held that third party credit hire companies might be vulnerable to adverse costs orders and that CPR 44.16 had not altered the powers of courts to exercise their discretion in such matters pursuant to CPR 46.2.
The defendant insurer Esure successfully defended an action for damages by four claimants whose claims were described as “very suspicious” by the trial judge but which he declined to find were in fact fraudulent allowing the defendant to pierce their QOCS protection and make an application for defence costs to be paid.
Many road traffic cases involving personal injury simultaneously found a claim for recovery for credit hire charges for a third party credit hire firm.
Since the Jackson reforms the QOCS regime intervenes providing a costs shield for those claimants unless they are found to be fundamentally dishonest.
In claims where there is the suspicion of fraud but no such finding is made by the Court the difficulty for defendants is typically as described by Mr Justice Turner in this case: “The claims were thus dismissed, but Esure had won a Pyrrhic victory. Who was going to pay their costs of meeting these dubious claims?”
Pyrrhus was of course the King of Epirus who famously defeated the Romans at one battle only to find he had lost so many soldiers in the process that he could not continue the war. He is said to have told a well-wisher something along the lines of: “Much more of this and I’ll be going home alone”.
In similar style, claims like this one frequently present a lose/lose situation for defendants banging their heads against the QOCS shield.
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Download full article: QOCS and Credit Hire: a Pyrrhic victory avoided and…Autofocus: the End of the Road
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