Category: Law News

It is the responsibility of your employer to protect your health and safety whilst you are in the workplace to minimise the likelihood of any injuries. If you feel that your employer has not fulfilled this obligation and you have suffered as a result then you might be able to make an industrial accident compensation claim.

Accidents in the workplace in relation to industrial compensation can broadly fall into two categories, industrial injuries experienced in the workplace and industrial diseases contracted in the workplace due to the negligence of your employer.

Industrial injuries

Industrial injury claims can be made for an accident that happened in the workplace which led to you developing an injury. Many jobs in industrial factories and warehouses come with certain dangers. For example, employees which operate heavy machinery could be vulnerable to the risk of injury if the machinery isn’t checked properly or if it’s faulty. It’s also your employer’s duty to provide you with adequate protection and safety clothing. If you work in a noisy factory for example and your employer hasn’t provided you with ear defenders and you contract industrial deafness or noise induced hearing loss then you might be in a position to make an industrial injury claim. Repetitive strain injury, tendonitis and hand-arm vibration syndrome are also industrial injuries which can affect workers in this sector.

Industrial diseases

If you work with harmful chemicals or are exposed to industrial fumes, your employer is responsible for protecting you from any hazardous substances in the workplace and will need to comply with regulations to reduce the risk of you contracting an industrial disease. Factories can be dangerous places and if you’re not provided with adequate health and safety measures and equipment then you could be at risk of contracting diseases such as chronic bronchitis, asthma, pneumoconiosis and other diseases related to exposure to asbestos such as mesothelioma. Industrial injury claims can only be made if your employer failed to instigate adequate safety precautions and comply with health and safety regulations.

 

+Richard Meggitt

Sharing the Blame

Three recent RTA cases show that the law of contributory negligence continues to raise difficult and challenging questions about personal responsibility.

In the famous case of Froom v Butcher [1976] QB 286 CA, Lord Denning defined contributory negligence as “a man’s carelessness in looking after his own safety” and commented that this issue can create a “remarkable conflict of opinion”.

When deciding whether a claimant must share the responsibility for damage suffered and have his compensation reduced to an extent that is “just and equitable” under the law reform (contributory negligence) Act 1945, the court must perform a delicate balancing exercise. This may involve weighing up multiple factors, such as safety developments, shifting attitudes to risk taking, expert evidence on the causation of injury and public policy arguments.

Three recent road traffic accident cases show that the law of contributory negligence continues to raise difficult and challenging questions about personal responsibility.

Pedestrian safety

Important issues about pedestrian safety are highlighted in Osei-Antwi v South East London & Kent Bus Company Ltd [2010] EWCA Civ 132. This case involved a claimant who was hit by a bus when travelling to work on 15 June 2005.

While the claimant waited to cross over the road at the junction of the main road and a bus depot, the bus driver attempted to execute a sharp left-hand turn into the depot.

During this manoeuvre, the rear of the vehicle mounted the pavement and struck the claimant. She was crushed against some safety railings and suffered both a broken ankle and a damaged knee.

Although the trial judge accepted that the claimant had been standing on the pavement rather than the road, he ruled that some criticism could be made of her position very close to the kerb.

The defendant bus company was held liable in negligence, but the claimant was found one-third to blame for failing to keep a proper lookout and take evasive action when the bus came round the corner. She appealed against this finding of contributory negligence.

The court of Appeal allowed the appeal and quashed the finding of contributory negligence in its entirety, finding that the claimant had been standing on a studded area of the pavement that was designated for pedestrians. The defendant admitted that buses did not normally cross the pedestrian area, and that the bus must have missed the claimant by a safe margin at the beginning and in the middle of its turn because only the rear end of the vehicle hit her.

In the circumstances, it was not clear what the claimant had done wrong that caused and/or contributed to the accident. She knew that the bus was about to turn the corner, but this did not make her obliged to move further back from the road because the area was intended to be vehicle-free.

As the claimant had not been standing in an inherently dangerous position and her only fault was “failing to realise until the very last minute that the driver had got the angle wrong,” it appears to have been a logical decision to overturn the finding of contributory negligence. However, Lord Justice Hallet did not reach a fixed conclusion about whether there is any legal principle that prevents a pedestrian who is struck on the pavement from ever being held to blame.

“As the court of Appeal decided that a pedestrian on the pavement will not necessarily escape being found partially liable, this leaves the door open for defendants to argue for an element of contributory negligence,” explained John Roberts, a solicitor at national law from Berrymans Lace Mawer LLP.

“Whether to do so would have to be a subjective decision based upon the facts of the individual claim. Factors to consider would include the position and movement of the bus, the pedestrian’s location on the pavement and the reasonableness of the pedestrian’s reaction, if any.”

Failure to wear a seat belt

Lord Denning set out the following general guidelines in Froom v butcher for apportioning liability where a claimant has failed to wear a seat belt:

• If the claimant’s injuries would have been prevented altogether by wearing a seat belt, the damages should be reduced by 25 per cent.
• If the injuries would have still occurred but been less severe, the reduction should be 15 per cent.

Over the years, defendants have made unsuccessful attempts to argue that higher reductions for contributory negligence should apply. A further challenge to the guidelines was recently made in Stanton v collinson [2010] EWCA Civ 81, which involved a catastrophic road traffic accident. On the night of 17 May 2003, the defendant gave a lift in his cat to four teenagers who were returning form a bar. Nobody in the vehicle was wearing a seat belt and the defendant drove at more than double the 30 mph speed limit before colliding violently with an oncoming vehicle.

During the collision, the defendant was killed instantly and primary liability for the accident was admitted on hid behalf. The 16 year old claimant, who had been sitting in the front passenger seat with a girl on his lap, suffered serious frontal lobe brain damage.

At trial, the main issue was whether the claimant’s damages should be reduced for contributory negligence due to (among other matters) his failure to wear a seat belt. It was submitted on behalf of the defendant that Froom v Butcher should be revisited due to subsequent developments, such as the introduction of compulsory seat belt use, improvements in design and increased public awareness.

Engineering experts agreed that the claimants head injury would have probably have been less severe if he had worn a seat belt, but complete prevention of serious injury would have been unlikely. However, no medical evidence was produced to show that seat belt use would have resulted in less severe cognitive deficits.

The trial judge therefore decided that the defendant had not been discharged the burden of proving that a seat belt would have made a considerable difference to the claimant’s injuries. She declined to reduce his damages for contributory negligence or depart from the guidance in Froom v Butcher, which had been made in anticipation of future safety developments. The defendant’s personal representatives appealed.

The court of Appeal dismissed the defendant’s appeal. Although the decision about whether a seat belt would have made a difference to the claimant’s injuries was not clear-cut, the trial judge had heard the evidence as a whole. She had therefore been entitled to conclude that medical opinion was required to resolve the uncertainties because the brain is a vunerable and extremely complex organ. It does not follow that medical evidence is necessary in every seat belt case and the case-management process should identify well in advance of trial whether the causation aspect ofcontributory negligence is an issue.

The guidelines in Froom v Butcher remain binding because they provide a well-understood formula and avoid an expensive, time-consuming enquiry into fine degrees of contributory negligence.

Frank Burton QC, who practices at 12 King’s Bench Walk and acted for the claimant, said: “The court of Appeal in Stanton has reaffirmed two principles on the law of contributory negligence concerning the wearing of seat belts.

“The first is that it is the defendant who must plead and prove, with appropriate evidence, that the failure to wear a belt probably made a considerable difference to the injuries sustained. In some cases this may require medical as well as engineering evidence to confirm that the belted injuries would have been avoided or would have been less severe.

Secondly the Court emphasised that the scale of reduction laid down in froom v butcher [1976] QB 286 CA of 15-25 per cent should continue to apply and any further attempts to extend the level of deduction are unlikely to succeed.”

The Good Samaritan

In Tolley (David) v Carr (Claire) & Ors [2010] EWHC 2191 (QB), the High Court gave a landmark ruling about the contributory negligence of rescuers. During his morning journey to work on 21 November 2006, the claimant travelled southbound along the M53 motorway through turbulent weather conditions. He stopped to assist the driver of a vehicle that overtook him and spun out of control. At this point, the claimant noticed that another driver has lost control of her vehicle and was blocking the outside lane of the northbound carriageway.

As the female driver was in immediate danger, the claimant crossed the central reservation and helped her out of the car safely. When he tried to move her car, which posed a great danger to other road users, it was hit by one vehicle rapidly followed by another and the claimant was thrown 35 feet down the road. He sustained devastating spinal cord and other injuries and was left with permanent paralysis of the lower limbs.

The defendants argued that the claimant’s damages should be discounted by between 25-33 per cent because he had failed to take reasonable care of his own safety when making a “wholly foolhardy” attempt to remove the car from the carriageway.

The High Court dismissed the defendants’ allegation that the claimant was guilty of any contributory negligence. Although it is possible for rescuers to be negligent if they act with act with “wanton disregard” for their own safety, Mr Justice Hickinbottom emphasised that “the law is slow and cautious in finding negligence in those who imperil themselves to save persons from risks caused by the negligence of others.”

Given that the claimant had acted under the pressures of the moment to reduce a substantial hazard to other motorists and had checked whether he could see any traffic approaching in the outside lane, surely his conduct fell within the category of the brave and commendable rather than the foolhardy and unreasonable.

In his October 2010 report entitled common sense, common safety, Lord Young recommended that “good Samaritans” and professional rescuers should not be held liable if they have put themselves at risk while helping others. However, Tolley illustrates that the common law already takes a generous and pragmatic approach to those who risk their own safety to save other persons from harm.

As with the other road traffic accident cases that have been discussed, the issue of contributory negligence was strongly contested in Tolley. The court was therefore once again required to assess competing factors and strike the balance of fairness.

Article by Azmina Gulamhusein , Editor of The Encyclopedia of Forms and Precedents.

 

+Richard Meggitt

You don’t have to be a solicitor to understand that no individual should suffer physically or mentally due to the negligence of others. As solicitors specialising in personal injury though, we firmly believe that compensation for such physical or mental trauma should be the entitlement of every individual.

It is highly likely that at some point in our life, we’ve all been involved in some form of accident or scrape which has ultimately differed in severity depending on the circumstances. This helps us understand that accidents can occur at anytime and any place. However, when somebody suffers a personal injury as a consequence of an accident at work or road traffic accident, they are often left wondering where to turn for advice on making a compensation claim for the injury and trauma suffered.

It is easy to sustain a personal injury of physical or mental nature that can result in a nominal amount of time off work and ultimately economic deprivation as a consequence of an accident. Bringing a compensation claim for road traffic accident or work related injuries can help minimise the repercussions you suffer.

When looking to take legal action, the claimant needs to be aware that most personal injury claims have a limitation period of three years from the date of the incident taking place. It is therefore vital that if someone has a claim, they need to seek legal advice as soon as possible to avoid being barred from taking the necessary legal action.

If you believe that you are eligible for a personal injury compensation claim, it is essential to obtain specialist legal advice.

At Accident Solicitors Direct (ASD), we apply our knowledge, expertise and experience in the personal injury sector to assist you in acquiring compensation for any personal injury suffered through the negligence of others.

Call 0800 163 622 to speak with one of our specialist advisors.

+Richard Meggitt

New research into the various types of personal injury claims being passed onto solicitors has worryingly revealed an increase in the number of fraudulent and exaggerated compensation claims being made.

The research was carried out via an online survey of 235 solicitors and enquired about their experiences of personal injury claims.

Statistical analysis of the survey supported the belief of a rise in ‘fake’ claims, after 57 per cent of the personal injury professionals interviewed had noticed an increase in the number of prospective clients making deceitful claims in the past ten years.

Attempts to claim monetary reward from fraudulent claims included compensation claims which were exaggerated or in some instances, wholly invented injuries by the claimant. Among the solicitors who had experienced suspect personal injury claims, 52 per cent stated that the initial claim would involve a car accident, with post traumatic stress and strained muscles being the most common ‘injuries’.

In an attempt to justify the results, 89 per cent of legal experts believe that the ‘blame culture’ associated with personal injury claims have been exacerbated by the introduction of the ‘no-win, no-fee’ arrangement and the recent growth of a UK compensation culture.

The research also revealed that six-in-ten solicitors believed that TV advertising for personal injury legal services was one of the key reasons for the increase in ‘fake’ claims, along with the pretence of it being an easy way to make money in a difficult economic climate.

The legal system is intended to ensure that fair compensation is provided to those who genuinely suffer injury or loss as a result of an accident. The law is not there to be taken advantage of by those who wish to abuse the system in pursuing false and exaggerated claims.

If you have suffered personal injury and believe you are entitled to compensation, please get in touch and speak to one of our advisers on 0800 163622.

[Source: Statistical research carried out by car insurers LV=]

 

+Richard Meggitt

Having made several announcements regarding the reformation of the personal injury claims process for road traffic accidents (RTA), the Ministry of Justice are finally preparing this month to put their plans into action.

On 30th April 2010, the personal injury claims process will undergo several changes including a new electronic portal for the transfer of information between solicitors and insurers, a fixed-cost structure and tighter control over deadlines will give rise to a revolutionary shake up of the way claims for vehicular accidents are filed and processed.

The newly constructed process will apply stringently to road traffic accident personal injury claims where the value of the claim is between £1000 and £10,000 and should see a compensation package (where liability is accepted) agreed within 30 days.

The main aim of the reform is to ensure a clear and well defined process is at the forefront of any personal injury claim and that it is able to deliver fair compensation to the claimant as soon as possible.

A revolutionary new portal designed by insurers and personal injury lawyers, will enable the swift electronic exchange of all relevant claim information and documentation such as medical records.

Organisations who will face the impact of the changes were recently given an additional twenty four days to prepare for the imminent RTA personal injury claims process which will take effect at the end of the month.

 

+Richard Meggitt

In recent years, the personal injuries compensation sector has been viewed as highly controversial, with analysts debating about claims being made and ultimately the subsequent legal rulings, ranging from the serious to the downright bizarre.

As the number of accident claims increases, there is some concern amongst the British public that we are experiencing an emergence of a ‘compensation culture’ that was once previously accredited to the American legal system.

In light of this public concern, the industry has taken steps to dismiss the materialisation of a ‘compensation culture’ and help put any worries to bed regarding public anxiety over the rising cost of insurance.

Solicitors and insurers have been working in conjunction with each other to help draw up a new code of practice which seeks to allay public unhappiness with the status quo with regards to accident claims and personal injury. It was being hoped that a debate about the current code of practice would help reduce the cost of insurance and prevent consumers from facing lengthy delays following their initial claim.

As the personal injury and insurance sector adapts to the new code, the effectiveness will no doubt improve over time, leading to increases in customer satisfaction across the board.

Consumers may be sceptical of the movement, however healthy debate in relation to the current code and improvements that could be made proves that the industry is at least conscious of any existing difficulties.

 

+Richard Meggitt

The Association of Personal Injury lawyers has rejoined talks on extending the fixed fees regime in personal injury cases.
APIL had walked out of the talks last month in an unprecedented move for the organisation.

The Civil Justice Council is conducting a mediation process to produce industry-agreed fixed costs for all ‘fast track’ road traffic accident, industrial disease, employer’s liability and public liability cases worth up to £25,000.

The mediation was set up at the request of Lord Justice Jackson as part of his review into the cost of civil litigation. Earlier this month, Jackson hinted that he may recommend increasing the small claims limit for personal injury cases if no deal can be reached on fixed costs. APIL opposes both the extension of fixed fees to fast track cases and any rise in the small claims limit.

APIL president John McQuater said the decision to rejoin the talks followed ­’concessions’ by the CJC. He said: ‘We originally withdrew from the talks because the CJC, acting on instructions from Lord Justice Jackson, insisted that figures only would be discussed. But the CJC has now agreed to discuss matters of process.’

APIL will now also file a final written submission to Jackson. McQuater added that his ‘profound scepticism’ about extending fixed costs remains.

Jackson’s report is expected at the end of the year.

 

+Richard Meggitt

Insurers plan advertising campaign for personal injury claims

Thursday 22 October 2009 by Jonathan Rayner

A number of insurers are gearing up to launch advertising campaigns to persuade personal injury claimants in motor accidents to bypass solicitors and deal directly with the responsible party’s insurer, it is believed.

The news comes as the Financial Services Authority confirmed that it does not intend to regulate insurers when they gather claims through ‘third-party capture’, but is instead seeking an ‘industry-led solution’.

Solicitor Robert Webb, a founding member of the Accident Compensation Solicitors Group (ACSG) which campaigns against third-party capture, said he had been told that a number of insurers were planning to target the public in advertising campaigns.

He said the regional claims manager of one major insurer had ‘loosley confirmed’ that an advertising campaign was scheduled for just after Christmas. ‘The result will be more under-settled claims as insurance companies pressure injured people to accept compensation without the advice of a solicitor, ‘ he said.

Meanwhile, the FSA has said that it is ‘exploring with trade bodies’ whether there could be an ‘industry-led solution’ to the regulation of insurers when they act for non-policyholders. However, it does not intend to take on this regulation itself. FSA insurance sector director Ken Hogg had previously said he would decide by the end of September whether it would take any action on third-party capture.

ACSG member Saffora Choudri, partner at SC Law, said she was not surprised the FSA was ‘washing its hands’ of third-party capture. ‘We have been trying for 18 months to set up a meeting with the FSA, but without success. The Ministry of Justice and Association of British Insurers also seem unwilling to tackle this growing menace.

‘The prospect for claimants is bleak and the insurance industry will be the only winner.’

Comments

3rd Party capture

Submitted by Anonymous on Thu, 22/10/2009 – 14:39.

What can one say other than for all the obvious reasons it\’s an appalling idea I ask you do turkeys vote for Christmas are insurers going to be fair and generous I think not. Also what happens when a claimant finds they have been short changed who funds that litigation. Unless claimants receive totally ‘independent’ legal advice then it’s inevitable that they will suffer. If it’s the insurance companies aim to reduce costs then may I suggest they stop defending so many case that are often indefensible. If it’s not liability they argue causation

 

+Richard Meggitt

On 7 June 2006 Mrs Hunt, a 47-year-old lady, paid a visit to Ripon Cathedral in North Yorkshire, as part of a sightseeing tour she was taking with her partner. Having looked round the inside of the Cathedral her partner suggested that Mrs Hunt might like to inspect the crypt. The crypt is located in the centre of the building. It is regarded by those who know the Cathedral as something of a jewel, since it is the oldest crypt in the country, having started life as the church built by St Wilfred in 672 AD. It is reached by a set of wooden steps that lead to a narrow passageway and a final flight of four ancient sandstone steps.

While descending the penultimate stone step Mrs Hunt had the misfortune to step on an area of depression in the sandstone. This caused her to fall and injure her ankle. Subsequent to the accident the defective area was measured and found to be six inches by five inches wide, and 1.25 inches deep at its deepest point. Mrs Hunt considered that this constituted an obvious hazard and sued the Chapter of Ripon Cathedral for failing to discharge their duties under the Occupier’s Liability Act 1957 (the 1957 Act).

Her claim was heard at the Middlesbrough County Court on 13 October 2008 (Hunt v The Chapter of Ripon Cathedral). Having listened to the evidence and submissions the judge dismissed the action. This article considers the duties owed to a visitor in Mrs Hunt’s position and how the discharge of the duty varies depending on the type of building visited.

Occupiers’ duty

The duty imposed on the occupier under the 1957 Act is, of course, to take reasonable care that the visitor ‘will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’ (s2(2)).

The repetition of the criteria of reasonableness in the 1957 Act is usually interpreted as a limiting qualification on the duty, since it is often suggested that the occupier’ only’ has to take reasonable care to ensure that the visitor is reasonably safe. However, a more potent restriction to liability concerns the nature of the location where the accident takes place, and particularly whether or not it has a function that can be said to provide ‘a social value’.

The Cobb at Lyme Regis

In 1995 the Court of Appeal was asked to consider the Cobb at Lyme Regis in Staples v West Dorset District Council. Famous for its appearance in The French Lieutenant’s Woman, the Cobb was described by Kennedy LJ as a ‘serpentine harbour wall’ that had stood in its position for 165 years. It was open to the public at all times, and had become a well-known tourist attraction:

When wet as it often is in the winter months because of rain, wind, sea and spray, this algae-affected seaward edge of the High Wall is in parts slippery.

Paul Staples, a 32-year-old visitor to the Cobb, decided to walk on it when the weather was fine, but there was ‘a strong south-east wind and spray was affecting the top surface of the wall’. In consequence, Mr Staples slipped and fell off the wall, suffering a fractured left hip in the process. His claim for damages was upheld by Auld J, who found that the Council was at fault for failing to erect a sign that should have warned those using the Cobb ‘of the particular danger of the surface being slippery’.

The Court of Appeal disagreed. They concluded that the risk of the wall being slippery when wet was so obvious that no duty existed. Moreover, they concluded that even if the Council had erected a sign of the type favoured by Auld J it was unlikely to have caused Mr Staples to act any differently.

At the time, the decision in Staples was greeted as a triumph for common sense, and possibly the high-water mark for compensation claims. However, it is clear that the Court’s reasoning was intended to place particular emphasis on the nature of the Cobb as a tourist attraction, and to the fact that Mr Staples had been allowed to use it (along with other visitors) for the purposes of recreation.

The Lake at Brereton Heath Park

This line of reasoning was developed further in the judgement of Lord Hoffmann in Tomlinson v Congleton Borough Council & ors [2003]. In that case the defendant owned and occupied a disused quarry that had filled with water to create a lake. It was known to attract many visitors in hot weather. The claimant was one of them, and on 6 May 1995 he dived into the lake, struck his head and sustained severe spinal injuries. The trial judge dismissed the claim for damages, but the Court of Appeal permitted it on the claimant’s appeal. Overturning that decision in the House of Lords, Lord Hoffmann considered that, when assessing the question of whether the occupier had provided reasonable care, the court had to assess:

… not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures.

He suggested that these factors had to be balanced against each other. Referring to Jolley v Sutton London Borough Council [2000] he stated that:

… there was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No 2) [1967] Lord Reid, at p642, drew a contrast with Bolton v Stone [1951] in which the House of Lords held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. The difference was that the cricket club were carrying on a lawful and socially useful activity and would have had to stop playing cricket at that ground.

Accident in St Botolph’s Church, Saxilby

In March 1999 Betty Kitchen fell and injured herself while attending a wedding at St Botolph’s Church (Kitchen v St Botolph’s Church [2003]). Mrs Kitchen alleged that the cause of her accident was a misplaced drain cover. However, the judge found against her, since he felt that he could not exclude other potential causes for her accident, including evidence that she may have fallen due to uneven ground or while chasing her granddaughter. Notwithstanding that the claim failed due to a finding of fact, HHJ Mitchell went on to consider the issues raised by Lord Hoffmann in Tomlinson:

It is, of course, perfectly possible for a visitor to a church to fall, for example because a high heeled shoe gets caught in the gravel of a church drive or they may trip against a raised grass verge and fall. Such accidents do occur but do not give rise to the liability of the occupier. I am not satisfied that the claimant did fall in the area of the sunken drain, but even if she did we do not require the construction of immaculate walkways round our ancient buildings in case someone falls because they have not looked sufficiently carefully where they are going. It would be highly undesirable if we required the appearance of our medieval country churches to be infected by warning notices or surrounded by a flat grating system (which was suggested to be the appropriate solution in this case). Such an attitude would offend anyone’s sense of ‘reasonableness’ and proportionality – taking into account the cost of such remedial work and the damage to the aesthetic features of the building by comparison with the isolated single case of a fall in broad daylight by a claimant who could see the obstacles, if any, in her immediate vicinity.

Compensation Act 2006

Moreover, since Tomlinson there is now a statutory requirement on the court to consider the potential for detrimental consequences of finding against an occupier. Section 1 of the Compensation Act 2006 specifies:

Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:

(a) Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way; or

(b) Discourage persons from undertaking functions in connection with a desirable activity.

Ancient monuments

Position of the visitor

Hazards at ancient monuments often include rough floors and narrow passageways, and light levels may be reduced to minimise damage to fabric and paintings. The visitor cannot expect to find the standard of a shop or factory when looking round a cathedral, and has to take increased care to protect themselves accordingly. In this case of Hunt the cathedral chapter claimed that there was a particular atmosphere of age and authenticity that they wanted to preserve in the crypt. That meant retaining the original 7^th century sandstone floor and steps. They believed that this was consistent with their duties to the visitor, and that the public expected this level of authenticity when they came to admire the oldest crypt in the country.

The occupier

The owners and the administrators of historic houses, churches, museums, monuments and similar properties will note what amounts to a public policy to restrict claims for personal injury where the accident location provides a ‘socially useful activity’. Nonetheless they have a duty to carry out an inspection of the access routes provided and of all areas where visitors are permitted to enter. But not every ancient floor will require relaying, nor will every corridor have to be provided with handles and grab rails. What then is the extent of the responsibility? Can an occupier of an ancient monument avoid liability if it does nothing at all? Lord Hoffmann referred to a balancing exercise that requires four criteria to be considered. On one side of the scales we have the risk and gravity of any injury; while on the other side there are the costs of avoiding the risk and the social value comprised in the amenity. The first three elements of the equation may be easy enough to calculate, by means of the usual risk assessment. The social value element is more difficult. It is easy enough to identify, but how does one quantify its place in the balancing act? The judge in Hunt considered that the cathedral chapter was entitled to regard alterations to the fabric (i.e. repairs) as a remedy of last resort. Accordingly, a repair to the crypt floor would only be regarded as mandatory if the risk of injury reached the stage where both the likelihood and the level of damage could be regarded as significant. However, he went on to conclude that once the threshold for intervention had been reached (i.e. once it was considered that the risk and level of injury was significant) then the fact that the crypt would have to be closed for three days to carry out the repairs would not have amounted to a reason for not carrying out the work. The chapter did not suggest that the costs of the work in themselves would be significant (less than £100 for the mortar), but they were concerned that the closure of a major part of the cathedral would disappoint a large number of visitors.

The courts

When dealing with an injury occurring at premises offering a social value, the courts are likely to determine such claims in accordance with the following principles:

(1) The visitor should not have unrealistic expectations of floor surfaces and surroundings when visiting an ancient monument.

(2) The occupier is not under a duty to warn the visitor of a risk that should be obvious to the reasonable observer (i.e. Staples).

(3) When considering whether or not the occupier has discharged its obligations under the 1957 Act the court will consider the four ingredients of Lord Hoffmann’s test: risk of injury, level of injury, cost of preventative measures and social value of the activity.

(4) Consideration of the costs of preventative measures includes considering the extent of any deterrent effect of a finding of liability, as specified in s1 of the Compensation Act 2006.

(5) Consideration of the social value of the activity will be likely to include:

Purpose of the activity, visitor numbers, the beneficial purpose of the activity and the extent it benefits society as a whole.

Conclusion

Some might regard this development of the law as creating unfairness, since a case of genuine injury may receive no redress merely because of the location of where it takes place, while others may applaud any policy that reduces the potential for compensation claims. Whatever the correct view there is an element of practical logic to the development. The potential for a sharp increase in maintenance costs has been avoided; the value of historical authenticity has been approved; and the public can be permitted access to the areas that might otherwise have been closed on the grounds of health and safety

Credit for this article should be given to Mr. Simon Wheatley, Barrister.

The article featured in PI Law Journal Jan 09.

 

+Richard Meggitt

Many solicitors and barristers have only become aware of the significance of pain disorders in personal injury actions relatively recently.  This is a complex area.  It is preferable that a correct diagnosis is made at as early stage as possible if treatment is to be successful, though I have been involved with cases where a diagnosis has been made a number of years following injury and a successful outcome has been achieved.  There seems to be a view in the legal world that that once diagnosed with a pain disorder it is unlikely that treatment will significantly improve the condition.  However, that is not my experience and defendant lawyers and insurers should be conscious of the fact that the value of a claim can dramatically increase if a pain disorder is not identified and treated early on, because very often the condition results in a reduced earning capacity or inability to work at all.

What is pain?

Pain is defined as an unpleasant sensory and emotional experience, which we primarily associate with tissue damage or describe in terms of tissue damage, or both, according to the International Association for the Study of Pain.  A more useful definition is to say that pain is whatever the client says it is.

Pain comes in two time courses: acute pain and chronic pain.  By definition, acute pain lasts for less than three months and includes post-operative pain, pain following road traffic accidents and, most acutely, painful medical and surgical conditions, such as appendicitis, peritonitis and other acute inflammatory conditions.  Chronic pain, by definition, is defined as lasting for three months or more and includes common complaints such as neck pain, lower back pain, joint pain etc.

Types of pain

Pain can be divided into two major types.  Nociceptive, or normal  pain, is where the pain signalling pathways are all in tact and this is most commonly found with musculoskeletal pain, eg lower back pain and neck pain.

Neuropathic pain, on the other hand, is a form of pain where there is damage and/or dysfunction to any element of the nervous system.  Patients usually describe very florid symptoms with this.  They will describe their pain as sharp, stabling, like electric shocks, like hot, stabbing pokers or razor blades.  They also suffer with a lot of burning pain.

In addition to the pain, patients will experience sensory dysfunction – light touches and pinprick sensations will be felt as exaggerated.  This can often lead to problems, for instance in showering and wearing clothing where the affected area can be acutely painful.  Along with pain, patients often have associated disability with their pain.  For instance, where a limb movement of the affected area causes pain they will start to disuse the area, leading to neglect, muscle wasting and in extreme cases, fibrosis and contractures.  This leads to further disability.

Examples of pain

Nociceptive pain includes:

• Whiplash injury;
• Lower back pain;
• Shoulder pain; and

Neuropathic pain includes:

• Complex regional pain syndrome (CRPS)
• Industrial accidents;
• Post-traumatic neuropathic pain;
• Paraplegia; and
• Quadriplegia

Pain physiology

The pain signalling pathway is an immensely complex neurophysiological system.

In essence, there are pain receptors that are receptive to motor, thermal and chemical stimuli found throughout the body, both peripherally and in the viscera.  These are connected by mostly A delta and C fibres back to the spinal cord.

In the spinal cord, pain transmission can be modulated, either amplified or depressed, by a number of local ascending and descending inhibitory and excitatory neural circuits.  After this modulation, the pain signal is transmitted up through the spinal cord via five different tracts, the most common of which is the spinothalamic tract.

These pain fibres then end up in about five different areas in the brain, as there is no central pain processing area, and these discrete areas in the brain translate into the different aspects of pain, including location, intensity, type, character, emotional response and other valuable information.

Telelogically, pain has been developed in organisms to keep the organism out of harm’s way.  For instance, if a limb is injured, there is an initial reflex action to remove the limb from danger.  If it is injured, the pain will signal to the organism not to use that area until it has healed.

Prevalence of pain

To give an example, in a busy hospital such as St Mary’s Hospital in London, over 13,000 operations are performed per year.  A significant number of these will require analgesic medication in the post-operative period.

Chronic pain

The figures stated that one in seven of the UK population lives with chronic pain.  This equates to approximately 7-14% of the UK population and these findings are similar in the western world.

The challenge of long-term pain

Clinicians look at pain with a bio-psychosocial model.  Biologically, clients suffer with and disability.  Psychologically, they have higher levels of anxiety and depression than others.  Socially, pain can lead to relationship difficulties, difficulties in the workplace and can often lead to patients struggling to cope with family and working life, and physical deterioration.  In severe cases, they may end up going onto benefits.

Treatments

Psychical and alternative treatments

Physical treatments for pain include heat packs, cold packs, TENS machines, hydrotherapy, support, ultrasound and infrared.  Manipulation techniques include physiotherapy, chiropractic, osteopathy and deep tissue massage.  Alternative treatments include acupuncture.

Pharmacological treatments

For pain treatment we consult the bridged World Health Organisation analgesic ladder.  Step 1 for mild pain includes paracetamol, non-steriodals and COX-2 inhibitors.  Step 2 is Step 1 plus the addition of weak opioids including codeine, dihydrocodeine and tramadol.  Step 3 includes step 1 and the addition of strong opioids including morphine, oxycodone, and buprenorphine  etc.  In the past few years, there has been an increasing use of opiates, that is morphine-like drugs, in the treatment of chronic non-malignant pain.  This has in some way been down to some of the more deleterious and irreversible adverse effects of the non-steriodal and cyclooxygenase inhibitor medications, which in long-term use have been associated with renal impairment and an increase in strokes and heart attacks.

Medication for neuropathic (nerve) pain

These medications are drugs that are generally used for other purposes but that have been found to be useful in neuropathic pain.  Examples include:

• Antidepressants;
• Amitriptyline;
• Anticonvulsants;
• Gabapentin;
• Pregabalin;
• Carbamazepine;
• Valproate;
• Opioid medication;
• Local anaesthetics; and
• Lignocaine.

Other agents include NMDA, antagonists, sympatholytics, GABAergics and capsaicin.

The pharmaceutical industry has a significant interest in medications for neuropathic pain, as it is seen as a significant market.  Agents include ziconotide preparation from sea-snail toxin, epibatidine preparation from the Ecudorian poison dart frog and other preparations in the pipeline.

Psychologically based therapy

It is often necessary to use psychologically based therapies, including cognitive behavioural therapy, conditionings, psychoanalysis, relaxation and biofeedback.  Only very rarely it is necessary to involve psychiatric input, in particular where clients have suicidal ideation or there is an underlying significant psychiatric problem, such as sever depression or schizophrenia.

Pain-management programmes

Pain management programmes seek to teach patients, usually in groups on an inpatient out outpatient basis, a variety of self-help techniques to help them manage their pain more effectively.  These sessions are done with a multidisciplinary team, usually comprised of a doctor, specialist pain nurse, physiotherapist, occupational therapist, pharmacist and other staff.

Techniques taught include management of medication, coping strategies and contingency plans, pacing of activity, education of patients regarding their pain, teaching patients goal-setting and trying to break certain negative pain behaviours.

Minimally invasive pain management

There are a number of different procedures that are used either with or without x-ray guidance.

Minimally invasive pain management procedure for musculoskeletal pain include:

• Epidurals;
• Facet joint injections;
• Nerve root injections;
• Suprascapular nerve blocks;
• Obturator nerve blocks; and
• Intra-articular nerve blocks.

Minimally invasive pain management for neuropathic pain includes:

• Intravenous guanethidine blocks (IVG);
• Lumbar sympathectomy;
• Stellate ganglion nerve blocks;
• Ganglion of impar block; and
• Occipital nerve block.

Most of these procedures are performed under x-ray guidance and can usually be done either with the patient awake or under local anaesthesia or with the addition of a small amount of sedation.  Most of the procedures involve the injection of mixtures of local anaesthetic and cortisone.

Another technique, which has been around since the 1950s, is the use of radiofrequency technology.  This can be used as a destructive mode (radio frequency denervation)  for, for instance, lumbar facet joint pain to destroy the local pain mediating nerves, or can be used in a non-destructive mode (pulsed radiofrequency) for areas of neuropathic pain.  In the destructive mode, nerves are actually destroyed with the application of an electric field.  In the non-destructive mode, pulses of electrical field are passed through local nerves and there is excellent basic sciences evidence of the beneficial effects of pulsed electrical fields on nerve membranes including stabilising them, reducing their activation threshold and reducing the amount of spontaneous activity in them.

Advanced pain-management techniques

There are a number of other techniques such as kyphoplasty and vertebroplasty.  These are percutaneous techniques for patients who have vertebral crush fractures either secondary to malignancy, osteoporosis or trauma in which bone cement is put under x-ray control into the lumbar vertebral bodies.

Spinal cord stimulation is an advanced technique for patients who have pain that has been refractory to medication and minimally invasive pain-management procedures, eg patients who have CRPS that is refractory.  In this, electrodes are placed adjacent to the affected target area of the spinal cord.  The electrode leads are buried under the skin and tunnelled to a pocket in the anterior abdominal wall where there is a battery pack and small computer.  The electrode array can then be controlled in terms of frequency, voltage, bursts of activity and electrode array pattern.

Yet other advanced techniques include the role of intrathecal pumps.  These again are implanted devices where a small cannula indwells in the intrathecal space and a reservoir containing opiates, balclofen or other substances are slowly delivered into the central nervous system via the cerebral spinal fluid.

Medical-legal cases reports

 The following anonymised cases are examples of personal injury claims, which I have dealt with in practice, to illustrate the effectiveness of appropriate treatment.

Musculoskeletal

A 54 year old woman was involved in a road traffic accident at 60 mph.  She was hit from the side and went into the central reservation, turning the car over.  The driver was killed outright and the passenger was rendered paraplegic.  The index client was a passenger in the back of the vehicle.

Findings

This lady was seen three years after the initial road traffic accident.  She had a whiplash injury, lower back pain, shoulder pain, post-traumatic stress disorder (PTSD) and severe sleep disturbance.

Treatment

She had a course of medication including antineuropathic medication and high dose anti-inflammatory medication.  She was seen by a pain psychologist and had sessions of counselling for her PTSD.  She went on to have minimally invasive pain-management procedures including cervical and lumbar facet joint injections.  This was followed by physiotherapy-based rehabilitation.

Outcome

After three months of intensive treatment, there was a reduction in her pain scores, a reduction in depression scores, improved sleep. Increased range of movement of her cervical and lumbar spine and she was ultimately discharged.

Neuropathic pain

A 38 year old women had a fill in the workplace down two steps and fractured her ankle.  She went on to develop CRPS, a form of neuropthaic pain.

Findings

Symptom-wise, she had hypersensitivity of the foot, constant burning pain with sharp, acute electrical exacerbations.  She was unable to weight-bear, unable to wear shoes, suffered depression and ultimately lost her job.

Treatment

She was seen approximately 18 months after her index accident.  she was tried on a wide number of different antineuropathic medications but unfortunately suffered with adverse effects from these.  She went on to have a lumbar sympathectomy, IVGs and intravenous lignocaine infusions.  Unfortunately, although these were initially beneficial, their effects only lasted a few weeks.  Eventually, after approximately four months she was referred for implantation of a spinal cord stimulator.  Two years later, this lady still has her spinal cord stimulator in situ.

Outcome

There were objective and subjective reductions in neuropathic pain.  She has now returned to the workplace – a significant milestone in the rehabilitation of patients suffering from pain disorders.

Summary

In summary, pain is very common.  It has a time course of acute and chronic pain.  Chronic pain affects up to one in seven of the UK population.  There are two major types of pain: nociceptive and neuropathic pain.  Overall, it has a massive socio-economic impact.  There are multiple treatments including medication, minimally invasive pain-management procedures, physiotherapy-based rehabilitation and any psychological input that may be required.  There are also a significantly large number of medico-legal claims in the system in which clients have pain as a significant factor in their case.

This article was written by Dr Christopher Jenner  in the June 2008 addition of the Personal Injury Law Journal

+Richard Meggitt