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01 February 2006
We reported this case in the Law Bulletin in February 2005.The judgment has now been upheld by the Court of Appeal.
In the November Law Bulletin, the VWF case of Montracon -v- Whalley (Court of Appeal) was reported. This was followed in last month’s bulletin by Doherty -v- Transtec from our Belfast office. This followed the approach of Whalley, in essence taking a broad brush to medical evidence in favour of the claimant. The findings in Whalley were almost identical to the Cardiff case of Morgan -v- Corus that appeared in the September bulletin.
In this case it was held that gritting the road on the evening before and at a set time in the morning was a suitable and sufficient system to discharge an NHS Trust’s duty of care, despite the gritting taking place at a time after many staff had arrived for work. The roads were gritted between 9pm and midnight the night before snow was forecast and were due to be done again at 7.30am. The claimant fell off his scooter at 7am at a time he said most cleaners and kitchen staff would have arrived.
The claimant worked on the night shift at a care home from March 2001. There were long periods at night during which the claimant had to provide surveillance, which involved sitting for substantial periods of time on a landing within the care home. There were some other duties, including hourly visits to the dormitories, which broke up the periods of time when they were required to just sit.
Immediately before he tripped in a factory, the claimant was carrying a cup of tea in his hand and was talking to a colleague. The claimant accepted that he tripped through his own fault.
In this manual handling trial, the claimant lost for the first lift, which caused him injury but won for his second lift. Both turned on the issue of “having a go” where no assistance was available.
The claimant was a delivery driver who collected 22 pallets from a depot. He asked for a curtain-sided lorry so he could use a forklift truck. The request was refused. On his return he asked for help from colleagues to unload and this request too was refused. He was obliged to use a hand pump truck. On the 11th occasion using this he felt an injury in his back.
A letter of claim including a request for earnings details was sent on 13 August 2004. Liability was admitted on 20 October 2004. On 21 March 2005 we served our medical report with notification of intention to issue proceedings, and again requesting earnings details to quantify losses. On 14 July 2005 an amended medical report was served with notification of intention to issue proceedings.
There is a two-year limitation period in respect of contribution proceedings. Section 10 of the Limitation Act 1980 provides the special time limit of two years for claiming contribution. Section 10(3) says that where a judgment in civil proceedings is made, then “the relevant date will be the date upon which the judgment is given, or the date of the award.
Time limits for amendment of proceedings after the expiry of the primary limitation period are covered by Section 35 of the Limitation Act. From time to time we have problems where we need to amend to plead a new cause of action or to substitute a new party. There is an excellent article on this by a barrister, Clive Thomas, at page 351 of the Journal of Personal Injury Law December 2005.
There are an increasing number of cases where liability has been admitted before the issue of proceedings but where a defendant, in its defence, has sought to resile from the admission.
www.bailii.org is a charitable website which has full transcripts of nearly all Court of Appeal and House of Lords decisions from the last few years.