Defend or Liable? Developments in Liability Claims Alan Rogerson and Sharon Sykes

Defend or Liable? Developments - MOJ Reforms End of July 2013 Pre-Action Protocol for Low Value Personal Injury Claims to include EL and PL claims of up to £25,000 (subject to certain exemptions and not ‘Disease’ claims) fixed costs introduced (£900 / £1,600) within the protocol EL investigation Period = 30 days PL investigation Period = 40 days

Defend or Liable? Developments - MOJ Reforms End of July 2013 Failure to admit liability in full or to meet tight deadlines will cause claim to drop out of portal and lose costs Benefits Predictive costs up to 6 times more expensive if case drops out of portal and goes to a Hearing. The new base costs for an EL claim worth £25,000 would increase from £2,100 max to £13,430 if settled at a Hearing

Defend or Liable? Developments - MOJ Reforms Unintended Consequences? We should be prepared for an increase in letters of claim on EL and PL claims after 30 April in the lead up to the protocol extension at the end of July. We should also be prepared for Claimants' solicitors sending large numbers of letters of claim on EL and PL claims (relating to pre-protocol accidents) in July and August, in an attempt to tie up your/our claims handlers and restrict their ability to handle claims in accordance with the new protocol.

Defend or Liable? Occupiers Liability Section 2 (2): “….a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted…” “…an occupier must be prepared for children to be less careful than adults…”

Defend or Liable? Occupiers Liability Tomlinson v Congleton Borough Council 2003 UKHL 47 Lord Hoffman: “even if swimming had not been prohibited and the Council had owed a duty …that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious.”

Defend or Liable? Playgrounds - Examples Alleged fast closing gate….. No faults (no other incidents recorded) Inspection regime fully documented (including RoSPA) Fully maintained

Defend or Liable? Playgrounds Zip wire – alleged defective matting caused ankle fracture on landing

Defend or Liable? Playgrounds Defective Swing – who is to blame?

Defend or Liable? Playgrounds

Defend or Liable? Playgrounds

Defend or Liable? Playgrounds

Defend or Liable? Playgrounds Extract from real Letter of Claim from Solicitors – claiming negligence because their client sat on: “….a donut shaped circular ring which quickly and unexpectedly rotated, causing our client to become disorientated and made him lose his balance…”

Defend or Liable? Playgrounds

Defend or Liable? Evidence

Defend or Liable? Concluding remarks Making the correct liability decision first time is crucial As is having the evidence to back up that decision Working in partnership is the key to meeting the tight timescales of the new Protocol Legal Costs escalate if we make the wrong decision on liability or argue over low levels of contributory negligence

Defend or Liable?