Contributors
As we begin 2022, we look back at six key cases from 2021 which we think will be of particular relevance during the new year to those defending casualty claims.
Vicarious liability
Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 provides guidance on the application of the vicarious liability principle in sexual abuse cases where there is not a conventional employer/employee relationship.
The case arose from allegations of historic sexual abuse against a junior football coach who died some years ago. The coach (Frank Roper) had used his position as a coach within the football club to carry out "scouting activities" to invite young players to the club, where he carried out the assaults. The case involved the abused players, who are now adults, seeking to claim damages from the club vicariously for Roper's acts.
The Court of Appeal unanimously overturned the High Court decision and held that Blackpool FC was not liable for Roper's actions because Roper was not an employee of the club nor did the club exercise real control over his actions. Stuart-Smith LJ said that the cases in which vicarious liability is imposed on a defendant:
"Have as their hallmarks features of control, enterprise risk and integration of the tortfeasor into the business. Where the relationship is such that the ‘employer’ is not even in a position to direct what the tortfeasor shall do, as Lord Reed held in Cox v MoJ (2016), 'the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.'"
He went on to say:
"Leaving on one side the fact that he had a completely free hand about how [Roper] did his scouting, there is no evidence of any control or direction of what he should do."
The restrictive approach adopted by the Supreme Court in the application of vicarious liability in the earlier cases of Morrison's and Barclays was reapplied in this case. The decision of the Court of Appeal has already been cited and followed this year in another sexual abuse case involving a football scout TVZ & Ors v Manchester City Football Club (Rev1) [2022] EWHC 7 (QB) where the club was similarly held not to be vicariously liable.
Contributory negligence
Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 was an interesting decision which examined whether a claimant can rely on their own drunkenness to avoid a finding of contributory negligence on the basis that they were unable to make an informed decision.
In this case, the claimant was so drunk that he fell asleep and could not recall the events of the evening but it was held that he had capacity to consent to move, with the assistance of the other occupants, to the back seat of the car where he lay unrestrained at the point of impact. The Court of Appeal found that a reasonable, prudent and competent man should have realised as the driver was assisting him to the rear of the car, that he was too drunk to drive and, whilst the driver should bear the substantial burden of liability, a finding of 20% contributory negligence on the claimant's part was reasonable. The Court of Appeal were not required in this case to consider whether the first instance reduction of 20% ought to have been higher, and whilst each case is specific to its facts, the case suggests that 20% remains the starting point for such arguments in line with the long standing principles set down in the 1977 case of Owens v Brimmell.
In Kyriacou v Finch [2021] 1 WLUK 359, the High Court considered how liability should be apportioned in light of the causative potency of the acts and omissions of each driver and their respective moral blameworthiness in light of this. On the facts, the claimant motorcyclist, who was riding a scooter along a single carriageway road, overtook a van and was involved in a head on collision with a vehicle which was making a right hand turn across his path. Expert evidence found that the motorcyclist was travelling at 55mph - almost twice the legal speed limit for the road in question - and at the time of the collision, the motorcyclist was not in possession of a driving licence. Whilst the judge confirmed that the car driver should have seen the motorcyclist and given way to him before making the right hand turn across his path, speed was a significant causative factor. The motorcyclist's damages were reduced by 80% to reflect his own contributory negligence.
Fundamental dishonesty
Iddon v Warner [2021] 3WLUK 432 is a clinical negligence case which provides guidance on balancing a finding of fundamental dishonesty against substantial injustice. This claim arose from the claimant's GP's failure to diagnose breast cancer, leaving the claimant with incapacitating chronic pain. Within the course of proceedings, the claimant filed two witness statements each supported with a statement of truth where she described the extent of the lifelong care and assistance she now required as well as the effect this has on preventing her from undertaking her pre-incident sporting events of running and swimming. During the course of the proceedings the defendant obtained evidence to show that the claimant had participated in a number of sporting events including a 10km run and open water swimming events. Whilst the claimant then filed a further statement to attempt to explain the untruths and avoid a finding of fundamental dishonesty on the grounds that it would lead to "substantial injustice", the judge found that there was "scarcely any step in the action that was not tainted by dishonesty" and a finding of fundamental dishonesty was duly made.
This case is one in a long line of authorities which suggests that, if there are grounds to avoid a finding of fundamental dishonesty on the basis of substantial injustice, the courts have yet to be persuaded that even extreme circumstances, such as those in Iddon, would constitute sufficient grounds.
Scope of duty in negligence claims
No case law review of 2021 could be complete without mention of the two key Supreme Court decisions in Khan v Meadows and MBS v Grant Thornton (see our previous article here). These two cases, whilst arising from completely different sets of circumstances (clinical negligence and accountants' professional negligence, respectively) were handed down together in 2021 and have far reaching effects upon how the link between a defendant's scope of duty and the loss caused should be analysed in negligence cases.
Essentially, the cases revisit the earlier professional negligence case of SAAMCo which determined that a claimant had to demonstrate that the damages claimed fell within the defendant's scope of duty. In an "information" case the damages were limited to losses resulting from the information being wrong, not the financial consequences of the claimant entering into a transaction, whereas in an "advice" case, the professional was responsible for the full consequences of their advice being wrong.
The SAAMCo tests were difficult to apply and led to some claims seemingly being decided unfairly.
The Supreme Court have now replaced the SAAMCo tests with six key questions which should be asked in all negligence claims:
- Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the "actionability" question).
- What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the "scope of duty" question).
- Did the defendant breach his or her duty by his or her act or omission? (the "breach" question).
- Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the "factual causation" question).
- Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage two above? (the "duty nexus" question).
- Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the "legal responsibility" question).
Whilst practitioners always have scope of duty/extent of the retainer in mind at an early stage, these tests now make it more crucial than ever to consider the purpose of the defendant's duty and why their advice was being sought. If the claimant's loss is a manifestation of the risks the professional was retained to help the client avoid, the loss is highly likely to be recoverable. This applies not just to professional negligence cases but is likely to have significant implications in clinical negligence claims where the scope of the medical opinion being sought is not always straight forward (as was the case in Khan) and many existing cases may need to be reviewed in light of the Supreme Court's decision.
