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
Steve Laing
Derek Reekie
Jillian Martin-Brown
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace Moran
To view previous
Bulletins:
October 2009
December 2009
February 2010
May 2010
July 2010
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Third Parties (Rights against Insurers) Act 2010
The Third Parties (Rights against Insurers) Act 2010 builds on the
concept of pursuers raising actions directly against insurers. A
partial scheme had been introduced in relation to road traffic
accidents by the European Communities (Rights against Insurers)
Regulations 2002. The 2002 Regulations allowed the victim of a road
traffic accident to raise an action directly against the other
party’s insurers.
The 2010 Act expands on that to allow actions to be raised directly
against the insurers of individuals and companies in a situation where
the insured is liable or may become liable to the pursuer. The 2010 Act
aims to rectify the situation existing under the Third Parties (Rights
against Insurers) Act 1930, as interpreted by the House of Lords in Bradley v Eagle Star Insurance Co. Ltd.
[1989] 1AC 957. Their Lordships held that it was necessary to establish
the debt against the wrongdoer first and then to seek enforcement
against the insurer of that debt. However, the difficulty arose in
situations where a corporate wrongdoer had been struck off the
Companies Register. It then became necessary to petition the court to
restore the company prior to raising proceedings and thereafter to
establish liability and finally to seek enforcement from the insurer.
The 2010 Act aims to cut out the middle-man and allow actions to be
raised against insurers directly. Section 3 sets out the procedure to
be followed in Scotland. It provides that a pursuer may bring an action
against an insurer and to seek declarator of the insured’s
liability and/or the insurer’s potential liability to the
pursuer. The insurer may then rely on any defence which the insured
could have relied upon had the action been raised directly against him.
Section 6 removes the need to restore dissolved companies to the
register in such cases.
As at time of writing the Act is not yet law. Section 21 provides that
the Act will come into force as prescribed by statutory instrument.
Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404
In March 2000 Mr. Spencer sustained injury to his right knee in an
accident at work. The employers admitted liability for the accident.
Mr. Spencer’s right knee remained unremittingly painful and in
February 2003 he went ahead with an above-knee amputation. Again, the
employers accepted liability for this as a consequence of the original
injury. Thereafter, Mr. Spencer made an initially good recovery. He was
fitted with a prosthesis. However, he did not wear this when driving
his automatic car. Further, he used a pair of sticks to help him
getting in and out of the car.
In October 2003 he stopped at a Sainsbury’s petrol station. He
got to the petrol pump by steadying himself against his car and filled
his tank. He did not use his prosthesis or sticks. On his return to his
car he caught his foot against a raised manhole cover and fell. He
suffered quadriceps tendon damage that ultimately confined him to a
wheelchair.
He sought damages for this second accident from his employers. His
employers defended in part on the basis of the House of Lords’
decision in McKew v Holland & Hannen & Cubitts (Scotland) Limited
[1969] 3 All ER 1621 i.e. that the claimant had acted unreasonably (in
failing to use his prosthesis or sticks) he could not hold the
defendant liable for injury caused by his own unreasonable conduct. His
unreasonable conduct should be held to be novus actus interveniens.
At trial the judge held that the injury suffered by Mr. Spencer on the
forecourt formed part of the damage for which his employers were
liable. He reduced the consequent damages by one third to reflect
contributory negligence in not using his sticks.
The Court of Appeal (Sedley, Longmore & Aikens L.JJ) upheld that
decision and dismissed the employers’ appeal. Sedley J placed
some emphasis on fairness, following Lord Bingham in Corr v IBC Vehicles Ltd. [2008] UKHL 13 (“the rationale of the principle that a novus actus interveniens
breaks the chain of causation is fairness.”) He concluded (at
[15]) that “…a succession of consequences which in fact
and in logic is infinite will be halted by the law when it becomes
unfair to let it continue…the point is reached when (though not
only when) the claimant suffers a further injury which, while it would
not have happened without the initial injury, has been in substance
brought about by the claimant and not the tortfeasor.”
Sedley J concluded that fairness to the employers was met by the
finding of contributory negligence (a point which had not been pled in
relation to the second accident in McKew: see 1968 SLT 12).
Valentine v Ministry of Defence [2010] CSOH 40
Action raised by mother & brother of deceased soldier. He was
crushed by collapse of earth in trench in Iraq. Held (Lord Bonomy),
granting damages to pursuers, that MOD had breached their duty of care
to the deceased at common law in failing to carry out an adequate risk
assessment resulting in failure to devise and institute a safe system
of work for carrying out the task of taking soil samples, leading to an
unsafe workplace. It was plainly foreseeable that there was a risk of
the deceased going close to and falling into the trench, and but for
defenders’ failure his death would not have occurred. Further it
was unnecessary to rely on regulations put forward by pursuers
(Construction Regulations etc) as it was sufficient in this case to
apply common law. 20% discount for contributory negligence where the
deceased had let his guard drop when carrying out the task in the
presence of obvious danger.
To read a full copy of the judgment follow the link:
http://www.scotcourts.gov.uk/opinions/2010CS0H40.html
Accidents Abroad: The Rome II Regulation
At time of writing reported decisions are still awaited on the
substantive and procedural effects of EC Regulation No. 864/2007 on the
law applicable to non-contractual obligations (“Rome II”).
The Regulation is directly applicable in EU Member States. It applies
“in situations involving a conflict of laws, to non-contractual
obligations in civil and commercial matters” (art. 1(1)). Article
32 provides that the regulation shall apply from 11 January 2009.
However, the temporal scope of Rome II remains somewhat uncertain and
it has been suggested that a ruling from the European Court of Justice
will be needed to determine the date from which the regulation will
apply: see Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB).
Rome II provides a comprehensive set of choice of law rules in
tort/delict which supersede the previous common law rules and the rules
under the Private International Law (Miscellaneous Provisions) Act
1995.
Art. 4(1) sets out the general rule that the applicable law is to be
“the law of the country in which the damage occurs” i.e.
the lex loci damni.
However, Art. 4(2) provides for an exception to the general rule,
namely “where the person claimed to be liable and the person
sustaining damage both have their habitual residence in the same
country at the time when the damage occurs, the law of that country
shall apply. Finally, a further exception is provided by Art. 4(3):
“Where it is clear from all the circumstances of the case that
the tort/delict is manifestly more closely connected with a country
other than that indicated in paragraphs 1 or 2, the law of that other
country shall apply.”
These rules seem to give a considerable degree of flexibility to the
courts as to how they apply the choice of law rules in any given case.
It remains to be seen how the national and European courts will deal
with these rules.
One further point should be mentioned in relation to road traffic
accidents. The European Parliament had originally sought to make the
law of the victim’s domicile applicable to the assessment of
damages in claims arising from road traffic accidents. That amendment
was rejected. However, recital (33) in the preamble to the regulations
indicates that “the court seised should take into account all the
relevant actual circumstances of the specific victim, including in
particular the actual losses and costs of after-care and medical
attention.” The European Commission has been consulting on
whether a special rule should be introduced for victims of road traffic
accidents along the lines of the victim’s habitual residence. It
remains to be seen whether further regulations will follow that
consultation process.
Miller v Greater Glasgow Health Board [2010] CSIH 40
Health Board’s reclaiming motion reclaimed against allowance of
PBA. Pursuer raised action for damages after contracting MRSA
(methicillin-resistant staphylococcus aureus) allegedly via the hands
of a staff member while a patient at Glasgow Royal Infirmary. Defenders
argued that claim was irrelevant and lacking in specification. Held
(Lords Osborne, Wheatley, Emslie), refusing reclaiming motion, that (1)
the general outline of pursuer's case was reasonably clear, the case
against defenders was straightforward and contained a particularisation
of the alleged duty; (2) pursuer’s averments that the probable
cause of her infection was transmission of the organism via the hands
of a staff member who did not follow the hospital's hand hygiene policy
were sufficient to entitle her to proof on causation; (3) the Lord
Ordinary's categorisation of the case as one potentially involving an
issue of professional misconduct was misconceived: pursuer's case was
based on the responsibility of unnamed members of hospital staff who
might or might not have been professionals and not on an alleged
departure from any professional practice, and pursuer’s case at
common law of vicarious liability was appropriate for inquiry on that
basis; (4) pursuer's case under the Control of Substances Hazardous to
Health Regulations 1999 ought to go to proof where excluding it would
be unjustified. Pursuer's case was said to be test case of MRSA in
hospital context and it would be wrong to exclude any part of it on
technical grounds and without proof.
To read a full copy of the judgment follow the link:
http://www.scotcourts.gov.uk/opinions/2010CSIH40.html
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