PERSONAL INJURY

Deep vein thrombosis - international carriage by air - treaties - meaning of 'accident'

Deep vein thrombosis and air travel group litigation: HL (Lords Scott of Foscote, Steyn, Walker of Gestingthorpe, Mance, Baroness Hale of Richmond): 8 December 2005



The appellant airline passengers (P) appealed against the decision ([2003] EWCA Civ 1005, [2004] QB 234) that the onset of deep vein thrombosis on an international air flight was not an 'accident' for the purposes of article 17 of the Warsaw Convention on International Carriage by Air 1929.


P had commenced proceedings alleging that they, or their deceased relatives, had suffered deep vein thrombosis caused by their flying on an aircraft operated by one or other of the respondent commercial airlines. As a preliminary issue on assumed facts, including a normal and unremarkable flight, the judge held that a passenger who sustained deep vein thrombosis while on an international flight had not suffered an 'accident' under article 17, when nothing had happened on board the aircraft that was in any respect out of the ordinary or unusual, and accordingly could not recover from the airline.


P submitted that the general conception underlying article 17 was that an airline should bear the risk of, and answer for, matters within its control, in respect of which it could take precautions and insure, and that a court should be reluctant to regard an airline as free from responsibility where a passenger had suffered on-board an injury owing to conditions on-board over which the airline had complete control.


Anthony Scrivener QC, Wayne Beglan (instructed by Collins) for the appellants; Robert Webb QC, Robert Lawson (instructed by Gates & Partners) for British Airways; Robert Lawson (instructed by Clyde & Co) for China Airlines.


Held, convention concepts were autonomous and were not to be interpreted in accordance with national law. It was important that the courts of the respective signatory states should try to adopt a uniform interpretation of the convention. The use of the term 'accident' in article 17 and the term 'occurrence' in article 18 imparted the idea that something had happened, but 'occurrence' permitted no distinction to be drawn between different types of happening. 'Accident', on the other hand, must have been intended to denote an occurrence having particular characteristics. For article 17 liability, the occurrence had to have the characteristics of an 'accident'. For convention purposes, the 'loss or hurt' could not itself be the accident. Article 17 distinguished between the bodily injury, on the one hand, and the accident that was the cause of the bodily injury on the other.


Two important requirements of an article 17 accident had been established and applied fairly consistently by national courts, namely, that an event or happening that was no more than the normal operation of the aircraft in normal conditions could not constitute an article 17 accident and, second, that the event or happening that had caused the damage of which complaint was made had to be something external to the passenger, Air France v Saks (1985) 470 US 392 applied. Those two requirements ruled out article 17 recovery in deep vein thrombosis cases where no more could be said than that the cramped seating arrangements in the aircraft were a causative link in the onset of the condition. The failure by an airline to warn its passengers of the danger of deep vein thrombosis and of the precautions that might be taken to guard against that danger did not improve the case, at least where there was no established practice of airlines generally or of a defendant airline in particular to issue such warnings. The agreed facts did not cover the case where there was an established practice and the usual warning was not given.


Article 31 of the Vienna Convention on the Law of Treaties provided that a treaty was to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The primacy of the treaty language, read in context and purposively, was of critical importance and did not permit the adoption of the economic analysis advocated on behalf of P.


Appeal dismissed.






FAMILY


Equality - family provision - widows - length of marriage - future housing needs - reasonable expectations

(1) John Anthony Haigh Fielden (2) Kathryn Ann Graham (executors of the estate of John Derrick Cunliffe, deceased) v Monika Theresia Gerda Cunliffe: CA (Civ Div) (Lords Justice Mummery, Wall, Moore-Bick): 6 December 2005


The appellant executors (F) appealed against an order in proceedings under section 1(1)(a) of the Inheritance (Provision for Family and Dependants) Act 1975 that the widow (C) of the deceased (D) should be paid a lump sum of £800,000 out of D's estate.


The net value of D's estate was £1.4 million. D died at the age of 66. C had begun to work for D as his housekeeper about 18 months before D died. C had had few assets and no independent income. She became financially dependent on D, initially as housekeeper and then as his wife. D's will had been executed a year before he died and a few days before he had married C. By his will, D left his residuary estate on discretionary trusts for a class of beneficiaries that included C. C had benefited by survivorship in relation to a number of funds and policies in the joint names of herself and D. F accepted that D had not made reasonable financial provision for C by making her one of a discretionary class of beneficiaries.


Penelope Reed (instructed by Cobbetts) for the appellants; Judith Bryant (instructed by Aughton Ainsworth) for the respondent.


Held, the judge's ruling lacked any kind of judicial analysis and failed to explain how he reached the figure of £800,000. The proper exercise of a judicial discretion required the judge to explain how he had exercised it. The judge's failure to explain himself was of itself sufficient to vitiate his decision, Meek v Birmingham DC [1987] IRLR 251 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 applied.


The judge had erred in relation to C's future housing needs. D's family home was manifestly in excess of her reasonable housing needs. The judge should have assessed what constituted reasonable provision for her housing from the estate. In the context of reasonable financial provision under sections 1(2)(a), 3(2)(a) and 3(2)(b) of the 1975 Act, there was a clear difference between a widow who had been married for many years and who had made an equal contribution to the family of the deceased, and a person in C's position who had been married for only slightly more than a year and who had made little contribution to the family wealth. In relation to housing, the comparison with what would be likely to happen on divorce was significant. After such a short marriage, the judge hearing an application for ancillary relief would have assessed C's housing needs and provided her with a lump sum notionally allocated to her housing.


If the judge thought that he was required to presume a 50:50 split of the estate, he was plainly wrong. Equality was only a yardstick for assessing the fairness and non-discriminatory nature of any division, White (Pamela Rosemary) v White (Martin Edward John) [2001] AC 596 considered. It could be departed from if there was good reason. Under the 1975 Act, the statutory obligation of the deceased was to make reasonable financial provision for his widow. Depending on the value of the estate, the concept of equality might bear little relation to such provision.


There was sufficient material for the Court of Appeal to exercise its discretion and reach a figure. C had about £150,000 by way of capital and a modest earning capacity at the age of 52. Her needs for housing and income had to be balanced against those of the other discretionary beneficiaries. In marrying D, C was entitled to have a reasonable expectation that her life once again as a single woman need not revert to what it was before her marriage, Miller (Alan Jonathan Richard) v Miller (Melissa Suzanne) [2005] EWCA Civ 984 applied. But reasonable provision would not enable her to live in the former matrimonial home or at the standard of living she enjoyed when D was alive. The correct lump sum was £600,000, Duxbury v Duxbury [1992] Fam 62 considered.


Appeal allowed.






SENTENCING


Compatibility - hearings - mandatory life imprisonment - minimum term - right to fair trial - oral hearings

R (on the application of Ross Hammond) v Secretary of State for the Home Department: HL (Lords Bingham of Cornhill, Hoffmann, Rodger of Earlsferry, Carswell, Brown of Eaton-under-Heywood): 1 December 2005


The appellant secretary of state appealed against a decision ([2004] EWHC 2753 (Admin)) that the procedure for setting a minimum term under paragraph 11(1) of schedule 22 to the Criminal Justice Act 2003 was incompatible with article 6 of the European Convention on Human Rights. The respondent (H) was a mandatory life prisoner to whom the transitional provisions in schedule 22 applied. Pursuant to paragraph 3 of schedule 22, the secretary of state had referred H's case to the High Court to have his minimum term fixed. H requested an oral hearing, but paragraph 11(1) of schedule 22 provided that the matter was to be determined by a single judge without an oral hearing. H sought judicial review and obtained a declaration to the effect that in accordance with section 3 of the Human Rights Act 1998, paragraph 11(1) of schedule 22 was to be read subject to an implied provision that, where it was necessary to comply with the existing prisoner's rights under article 6(1) of the convention, the judge had the discretion to order an oral hearing.


The secretary of state accepted that there would be some cases under paragraph 3 or paragraph 6 of schedule 22 in which fairness would require an oral hearing before the minimum term to be served by an existing prisoner was finally determined by the court. However, he argued that there was nothing in article 6 of the convention to suggest that that opportunity needed to be afforded before the first instance court and such a hearing was available in the Court of Appeal, such that any deficiency at first instance could be remedied on appeal and there was no incompatibility.


H accepted that the requirements of fairness would not, in the unusual context of paragraph 3 applications and paragraph 6 references, require an oral hearing in every case. However, H submitted that in some cases, fairness would require that such an opportunity should be granted at first instance and paragraph 11(1) of schedule 22 was incompatible with article 6 in denying that opportunity in all cases and that incompatibility was not remedied by the possibility of appeal.


Jonathan Crow, Kate Gallafent (instructed by Treasury Solicitor) for the appellants; Edward Fitzgerald QC, Phillippa Kaufmann (instructed by Bhatt Murphy) for the respondents.


Held, paragraph 11(1) of schedule 22, in stipulating that on a determination under paragraph 3 or paragraph 6 the High Court judge must act without an oral hearing, was not ambiguous or unclear and the issue as to whether it was incompatible with the prisoner's right to a fair trial turned wholly on the interpretation and application of article 6. The convention jurisprudence appeared to support H's contention that an oral hearing should, where fairness required it, be held before a minimum term was set for an existing prisoner such as H, and thus to show that paragraph 11(1) was incompatible with the convention, De Cubber v Belgium (1984) 7 EHRR 236 and Findlay v United Kingdom (1997) 24 EHRR 221 considered. It was plain beyond argument that the imposition of a sentence at first instance was part of a criminal trial and ought in any ordinary case to take place in public at a hearing at which the defendant was present and represented. In the unique situation addressed by paragraph 3 and paragraph 6 of schedule 22, fairness would not, in many cases, require an oral hearing to which many existing prisoners might in any event waive their right. In those cases where fairness did require an oral hearing, however, and H's case might or might not be one such, paragraph 11(1), in precluding the possibility of an oral hearing at first instance, was incompatible with the convention. Where a prisoner faced the prospect of imprisonment for the whole of his life or for a lengthy period and fairness required an oral hearing, it was not an entitlement of which he should be deprived lightly.


The hearing before the judge and the hearing in the Court of Appeal had different functions. The function of the judge was to determine the minimum period. The function of the court was to decide whether the sentence was one that the judge could lawfully and properly impose. If the complaint was a good one, it was hard to see how matters could be mended by the fact that a prisoner had an oral hearing in the court. The only way to give him the hearing to which he was entitled would be to remit the matter for an oral hearing before the judge but that would be precluded by paragraph 11(1), and in any case the court had no power to remit the question of sentence to the judge.


Appeal dismissed.






CIVIL PROCEDURE


Recusal - witnesses - real possibility of bias

(1) AWG Group Ltd (Formerly Anglian Water Plc) (2) AWG Shelf 11 Ltd (Formerly Morrison Plc) v (1) Alexander Fraser Morrison (2) Stephen John McBrierty: ChD (Mr Justice Evans-Lombe): 1 December 2005


The defendants (M) applied for the judge to recuse himself. The case arose from the takeover by the first claimant (W) of a public company of which M were executive directors and substantial shareholders. W's case was that it had been procured to make the bid and to declare it unconditional as a result of a representation about the target company's profits made by M when they had no bona fide belief that such a level of profit would be achieved, and that M had fraudulently procured the target to conceal material from W's due diligence inquiries.


The judge had become aware that the claimants were intending to call a witness (J) who had been a director of W and chairman of the audit sub-committee of its board. J was well known to the judge, with the result that he would have the greatest difficulty in dealing with a case in which J was a witness where a challenge was made to the truthfulness of his evidence. The judge alerted the parties accordingly. The claimants' answer to the problem was to say that they would not call J, but would call his fellow non-executive directors who were also members of the audit committee of W's board at the material times. M argued that if J was not called, for reasons extraneous to the subject matter of the trial, they would be denied the opportunity to cross-examine him and that part of their defence involved criticism of post-acquisition decisions taken by the board of W at a time when J was a member of its board.


Charles Aldous QC, Charles Bear QC, Dominic O'Sullivan (instructed by Herbert Smith) for the claimants; Lawrence Cohen QC, Amanda Harrington (instructed by Dechert) for the first defendant; Philip Marshall QC, Deepak Nambidan (instructed by Olswang) for the second defendant.


Held, the test derived from the authorities was whether in all the circumstances a fair-minded and informed observer would conclude that there was a real possibility that the judge might arrive at a decision through bias, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 and Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528 applied. The judge's continuation as judge would not fail that test.


J's witness statement was mainly directed to the issue of causation of loss and to the impression made on W's board by the representations made by M in the course of W's due diligence inquiries. The proposed new witnesses would be able to give the evidence that J would have given. That they would be giving it in J's place would not constitute an unfair disadvantage to M. J had not been an executive member of W's board responsible for the day-to-day trading decisions of the target company after the acquisition. The question would not be whether particular trading decisions were ill-judged but whether or not they caused relevant loss.


There was a second stage to be gone through in arriving at a conclusion. In a case with complex facts, substantial documentary disclosure and large numbers of witnesses, there was a possibility that the course of the trial would be affected by the unexpected emergence of facts that placed the roles of individuals, such as J, in a new light, and that might lead the judge, at any stage in the course of the trial, to conclude that he ought not to be the judge who decided whether or not the serious allegations made by the claimants against M were made out. The court had to balance whether the apparent role of J in the overall circumstances of the case led to a risk that such a changed picture might emerge. Such risk had to be balanced against the undoubted disruption to the administration of justice caused by having to find a new judge and new trial date. The risk was too small to make it necessary for the judge to recuse himself.


Application refused.




Paraplegia - personal injury claims - pre-action admissions - statutory interpretation - validity

Jane sowerby v Elspeth Charlton: CA (Civ Div) (Master of the Rolls Sir Anthony Clarke, Lords Justice Brooke (vice-president), May): 21 December 2005


The appellant landlord (C) appealed against the entry of judgment against her in a personal injury action by the respondent (S), who had suffered catastrophic injury following an accident on C's property.


The front door to C's property was at a higher level than the pavement and was accessed via a flight of external stone steps. There was a handrail only on the left-hand side of the steps. On the right-hand side of the steps was another flight of external stone steps leading to a basement flat, which was below pavement level. As S left the property via the front door, following an evening of socialising, she had fallen approximately eight feet over the edge of the steps to the level of the basement flat.


After an initial exchange of correspondence, C had admitted liability in an open letter, but subsequently withdrew the admission following the issue of proceedings. S had successfully applied to strike out parts of C's defence, with a view to relying on the admission of liability, but C had been granted permission to appeal on the basis that the scope of rule 14.1 of the Civil Procedure Rules (CPR) raised an important point of practice. The issue before the court was whether the language of rule 14.1 was capable of being interpreted in the same way as rule 3 of order 27 of the rules of the Supreme Court, which was capable of embracing admissions made before a court action was started.


Richard Lynagh QC, David Platt (instructed by Kennedys) for the appellant; Paul Rose QC (instructed by Leigh Day) for the respondent.


Held, the judge had been wrong to hold that rule 14 applied to pre-litigation admissions. Despite provision under the CPR regime for pre-action activity in the form of pre-action protocols and pre-action disclosure, the CPR were principally concerned with the regulation of cases after an action was started. That regulatory scheme was so carefully drafted that there could have been no intention that a pre-action admission of liability would be embraced by the wording of rule 14.1(1). An admission of liability before an action was brought could not be equated with an admission of 'the truth of the whole or any part of another party's case'. That was because a party's 'case' was not formulated until the claim form or particulars of claim were prepared, and a person did not ordinarily become a party until legal proceedings had been commenced.



Furthermore, it was clear that the CPR personal injury pre-action protocol did not intend the presumption expressed in paragraph 3.9 of the protocol to apply to pre-action admissions of liability in multi-track claims. There was express recognition in paragraph 2.9 of the protocol that letters of claim and responses were not intended to have the same status as a statement of case in proceedings.


Although there were clearly issues of contributory negligence, legal authorities indicated that, on the facts, there was no real prospect of C resisting a finding of primary liability, Haworth v Findley (unreported, 3 May 2000) and Lips v Older [2004] EWHC 1686 (QB), [2005] PIQR P14 approved. Summary judgment was therefore appropriate.


The court offered opinion on the status of three influential cases, Standerwick v Royal Ordnance Plc (unreported, 6 March 996) superseded, Gale v Superdrug Stores Plc [1996] 1 WLR 1089 doubted, and Braybrook v Basildon & Thurrock University NHS Trust [2004] EWHC 3352 approved.


Appeal dismissed.