Falls from heights
As of 6 April, The Work at Height Regulations 2005 have come in and there is now a duty to prevent falls from heights under two metres. Recreational climbing is, of course, excluded.
Practice and Procedure
Land Registry searches
We sometime get cases where we are trying to trace the owner of a property for the purposes of a public liability claim. Please note that there is a website where, for £2.00, it will detail the owner of the property, when it was purchased, how much for, and whether there is any mortgage. The website is http://www.landregisteronline.gov.uk/
The mysterious world of limitation
Three limitation cases this month, all of them successful.
Date of knowledge in Martin -v- Kaisary and Royal Free Hospital NHS Trust
On 5 April 2005 Mr Justice Hodge found that a claim against an NHS Trust was not statute-barred. The claimant had sought to join the NHS Trust as a Second defendant to the action against a surgeon. The surgeon had carried out an operation in October 2000 following which the claimant became seriously ill. Within the three year limitation period he issued proceedings against the surgeon alone. After the expiry of the three year period he sought to join the Trust as a defendant after seeing the defence, which denied that the surgeon was responsible for the nursing at the hospital. The claimant argued that his date of knowledge was within three years of the application to join the Trust, since he initially believed that his post-operative bleeding had been caused by a reaction to a drug, and it was not until 2003 that he received expert evidence that his cardiac arrest was due to haemorrhaging from the operation site, and not until August 2001 that his neurologist explained to him that he had suffered some brain damage.
The Judge held that, while the claimant’s solicitors had been mistaken in not including the Trust as a defendant because they had wrongly assumed that the surgeon was responsible for the nursing staff, the claimant’s claim against the Trust could proceed because his date of knowledge was such that time did not begin to run until August 2001.
In the second, VWF, case, the Court of Appeal in Burgin -v- Sheffield City Council held on 14 April 2005 that the Judge had not been wrong in exercising his discretion by allowing a time-barred claim against a local authority employer to proceed. The court said there was no prejudice caused by the delay, either by virtue of the fact that a potential witness had died or that the determination of issues of apportionment as between the local authority and the subsequent employer were affected. The court held that the evidential burden of proof, that the evidence was less cogent by reason of delay, was on the defendant. There was no question of any change in working practices, and there was no reason to believe that the local authority could not itself adduce evidence as to that or provide witness statements about it. The case was allowed to proceed.
The third case was a deafness case involving two defendants, and turned the question of when the claimant knew that his hearing loss was “significant”. Unusually, the Judge accepted that the claimant did not appreciate this until his medical examination, which we arranged, and that time did not begin to run until that date. Before then the client’s wife had complained that he had the TV up too loud or did not hear what she was saying. The Judge found that a wife complaining of her husband not listening to her is not an indication of a significant hearing loss and it was not reasonable to expect the client to seek advice from his GP or seek a referral to an ENT consultant just because his wife was complaining.
The client’s response to his complaining wife was reasonable, that he thought that his condition was down to “one of those things, a fact of life and to just get on with it”. The claimant had made other claims for damages for two accidents at work and for VWF, which showed he did act and seek legal advice as soon as he understood that there was a significant injury with those claims, which reinforced his evidence that he did not think that he had a significant problem with his hearing until after the medical examination.
Smallwood -v- Briggs of Burton Plc 19 April 2005 Chesterfield County Court