Are headphones bad for your health?

Published April 13, 2012 employer's liability , public liability Leave a Comment

The risk of hearing loss from the use of portable music players has been known for some time. The fear is that if the volume through headphones is too high, there may be a risk of permanent damage to hearing.

Millions now own MP3 players and smartphones which are used daily to listen to music. Scientists have concluded that hearing loss which used to be known as blacksmith’s disease, may now in the modern age, be called MP3 disease.

Sydney’s National Acoustic Laboratories found a quarter of personal music system users in a random sample listened to music at dangerous volumes. Research shows that some personal music players can output music at 105 decibels.

Action on Hearing Loss has urged awareness of the risks and the long term disability that hearing loss can cause.

But the risk from headphones isn’t necessarily limited to loss of hearing.

As the number of Smartphone and iPod users soars, so does the number of pedestrians suffering serious injury while wearing headphones. Science Daily reports that a recent study published in the Injury Prevention journal has suggested that the number of pedestrians injured who were wearing headphones has tripled in the USA. Our own experience of dealing with a case where a pedestrian was struck by a moving vehicle while wearing headphones saw the pedestrian to be found 20% contributory negligent for wearing headphones.

Due to this rise, road safety campaigners have began to focus on ‘iPod Oblivion’ which is the name psychologists have given to the trance-like state people can apparently enter while listening to music.

As there are no precise figures available in the UK for those suffering from MP3 disease or those pedestrians injured while wearing headphones, only time will tell how bad headphones really are for your health.

At BClaims we have extensive experience of winning claims on behalf of clients who have suffered hearing loss and related conditions due to exposure at work. Contact us for more information.

The perils of missing the dreaded time bar date

Published March 24, 2012 prescription , public liability Leave a Comment

Here is another example of the Courts’ reluctance to extend the time limit which a party has to raise a claim. The case of David T Morrison Company Limited v ICL Plastics Limited  highlights the serious consequences for pursuers if an action is not raised in time.  There was no personal injury involved here so the relevant period was 5 years.

In this case, the pursuers owned a shop which was damaged by the catastrophic explosion of the Stockline factory in Glasgow on 11 May 2004. The pursuers sought damages amounting to £1.5M. The summons was signetted and served on 13 August 2009, some five years and three months after the explosion occurred. The defenders argued that the claim had prescribed because the court action was not commenced within 5 years of the explosion. The pursuers contended that the relevant  period did not start on the day of the explosion itself but only when they could reasonably have formed a view as to the cause of the accident. The case therefore concerned a deceptively simple question. When did the prescriptive period begin?

The Court confirmed that in deciding the correct starting date for the running of the prescriptive period it did not have to concern itself with issues such as whether the pursuer had identified the correct party to sue, whether the claim was likely to be successful or the precise extent of the damage. An obligation to pay damages normally arises on the day the loss injury and damage occurs. If the pursuers wanted to argue for a later date they would have to show either that they weren’t aware the loss had occurred (unlikely given the nature of the event) or that they weren’t aware that their loss was caused by someone else’s fault.

Lord Woolman found that the pursuers were not entitled to argue that they could not have known their loss was caused by the defenders.  As he put it, “Buildings do not explode spontaneously”. The legal principle of res ipsa loquitur (“the thing speaks for itself”) applied and meant that the pursuers were immediately in a position to conclude that “someone is responsible” and sue the occupiers of the premises (the defenders). Moreover, the pursuers would also have had an immediate claim in the law of nuisance. Claims on either of these bases would not have required the pursuers to carry out enquiries or instruct expert reports as to the true cause of the explosion. The onus would have been on the defenders to prove that the explosion had occurred without fault on their part.

Lord Woolman found that the 5 year period which the pursuers had to raise legal proceedings had accordingly commenced at the date of the explosion. The action was therefore raised too late and the pursuers’ claim failed.

It was clear that the Court had policy considerations to take into account. It took the view that if Courts were to display too much of a degree of latitude in relation to the start of the limitation period beyond what would be the obvious date then the prescriptive period may be extended for lengthy periods.  A defender could only be certain that a claim had expired at the end of the long negative prescription (20 years) and that would mean insurance companies having to maintain reserves for that far lengthier period.

Lord Woolman’s decision gives no clue as to the circumstances in which the court action came to be raised after the prescriptive period had expired but the case undoubtedly highlights the need for very careful consideration of the relevant time limits for the making of a claim in each and every case.

David Armstrong

The Unfortunate Rory Lamont

Published March 7, 2012 public liability Leave a Comment

I was at Murrayfield last week to watch Scotland’s Six Nations match against World Cup finalists France. Scotland uncharacteristically managed to score a couple of tries. Unfortunately, a combination of errors, questionable refereeing and injuries to key players saw Scotland succumb to another creditable but sadly predictable defeat.

 Among those to be stretchered from the field was Scotland winger and Twitter enthusiast Rory Lamont. Since his introduction to international rugby, if a Scotland player needs to be carried from the pitch on a stretcher, then there is a very high likelihood that it will be Rory Lamont. On this occasion the unfortunate winger broke his leg. In previous outings for Scotland he has (in different matches) smashed his cheekbone, damaged his ankle ligaments and damaged his knee ligament. That last injury came in the same defeat to Wales which saw a serious neck injury end Thom Evans’ rugby career and in which Chris Paterson was hospitalised with kidney damage. 

So my question is this – is it any wonder that players are seriously injured in a game which involves 30 angry, 20 stone men running around a muddy pitch and crashing into one another as hard as they can? 

The answer is – no, its not. 

I would leave it there but – just out of interest – what does the law say about it all? 

The law says (amongst other things), “Volenti non fit injuria” which basically means no injury can be done to the willing. This is a complete defence which, if proven, will allow a defender to completely escape liability to a pursuer. 

In other words if Rory Lamont voluntarily plays in a game of rugby, knowing the risks and the likely behaviour of players, he is unlikely to succeed with a claim for having his shirt ripped,  or his cheekbone smashed, or his ligaments damaged or his leg broken.

For the defence of “volenti” to apply a player must voluntarily agree (either expressly or impliedly) to accept the risk of injury and must have knowledge of the full nature and extent of that risk. Given his impressive history of previous injuries it seems fair to conclude that Rory Lamont had full knowledge of the risks involved. Such is the physical nature of the game at the top level that serious injury will always be a real risk. 

If, however, an opponent were to halt the unfortunate Lamont by hitting him over the head with a large piece of wood then he may have a case. Such an incident has, to my knowledge, yet to occur in an international rugby match but if it is going to happen to someone then, given his run of bad luck, the chances are it will be to Lamont…

Jonathan Cornwell

Taylored to fit some more: Litigation Costs in Scotland – a follow up

Published March 5, 2012 Uncategorized Leave a Comment

As you will have noted in our recent post, a review of litigation funding in Scotland is underway in the shape of the Taylor review.

We are a couple of weeks away from the end of the consultation period on 16 March. It’s safe to say there has been limited discussion since its launch in social and traditional legal media. The January issue of the Law Society of Scotland’s Journal featured an interview with Sheriff Taylor and discussed the main themes. I suspect a flurry of activity may strike shortly before responses have to be submitted. We are after all dealing with litigators whose last minute deadline habits die hard!

One of the main themes of the review is predicting the cost of litigation. “How long is a piece of string?” appears to be the response many clients are met with when they want to know how much a case might cost them. The review suggests certainty and predictability- both features which are sometimes lacking in our courts- would improve the system. The expenses that a successful litigant might recover from the losing party are, with a few exceptions, rarely on a fixed scale. Taylor moots further fixed scale costs being introduced to Scotland.

Expert witnesses and the regime for sanctioning their use in civil cases also comes under scrutiny. In Scotland,  joint experts are a rare thing and the cost of employing experts has seen a gradual increase in the recent past. Greater use of joint experts or seeking agreement of the court for employment of an expert in the first place is suggested as one solution. I wonder if many experts will be responding to the review as they no doubt have an interest?

I shall return to the myriad of issues brought up in respect of referral fees in a later blog. As with all things costs and money related, I think it’s best to take them in bite size chunks. Regular updates on twitter in very palatable chunks though – keep in touch with us there.

Ciaran Dougherty

Litigation costs in Scotland- Taylored to fit

Published February 2, 2012 employer's liability , public liability , road traffic , trips and slips Leave a Comment

 We are finally talking money in Scotland. For a change it’s not independence related or how much England subsidises us (or vice versa).

Almost two years since LJ Jackson made waves with his report on costs in civil litigation in England, recently retired former Sheriff Principal James Taylor is leading a review of the costs system in the Scottish Civil Courts. By costs we’re talking about legal expenses.

At Brodies we’re currently knocking heads on penning responses to many of the questions the review is seeks views on. The full consultation paper can be found via the Taylor Review pages of the Scottish Government website.

At 130 pages long, there’s a huge amount covered in the consultation. It would be difficult to summarise all the issues noted here so a bite size tour seems more appropriate. Over a few blogs we’re going to highlight some of the issues raised. Perhaps this will help in formulating responses to questions in the review which are invited from anyone whether in Scotland or elsewhere, court users or not.

The Taylor costs review builds on the Lord Gill review which made recommendations on reforming the Civil Courts structure in Scotland. The Scottish Government remit for Taylor was to examine the effect of costs on access to justice and making Scotland a forum of choice for litigation.

The review then deals with the following topics in turn which I’d suggest we come back to in further blogs:

  • Predicting costs and systems of predictability
  • Referral fees
  • Insurance- After (ATE) and Before (BTE) the event
  • Damaged Based Agreements (DBA), third party & alternative funding sources

With almost daily comment on many of these issues in mainstream media, it seems timely that this review is encouraging debate from those engaged in litigation. While arguably we are following in the shadow of the Jackson report, there are issues unique to the Scottish market and (our own sphere at BClaims) of personal injury. Personally I hope that the review proves to be the catalyst we need to make Scottish litigation more modern, efficient and, why not, internationally respected.

Make sure to subscribe or follow us on twitter for more in depth comment in the next few weeks.

Ciaran Dougherty

Justice Secretary Latest Proposal – No Compensation for Criminals

Published January 31, 2012 criminal injury Leave a Comment

It was recently reported on the BBC News website that the Justice Secretary, Ken Clarke has proposed that the scheme for pursuing a claim for criminal injuries be completely reformed.

He argues criminals seeking compensation often causes public outrage.  Criminal Ian Huntley’s £15K claim for compensation from the Criminal Injuries Compensation Authority following an assault with a makeshift knife by another inmate at Frankland Prison in Durham in March 2010 was widely publicised.

The CICA reported at the time that Mr Huntley was not successful with his application due to the nature of his crimes and made it clear that the scheme precludes claims for persons with very serious criminal records. This appears contradictory to BBC reports that within the £75 million paid out to criminals under the existing scheme, there was a successful claim by a convicted rapist and someone convicted of two killings.

Mr Clarke’s proposals are that only in exceptional circumstances will criminals be awarded compensation as victims of crime.  What is “exceptional” though? The circumstances of the attack or the criminal record or both?   Does the current system not already reflect this?

The rules under the current scheme see money from fines paid by criminals going in to the CICA pot.   Criminals who are not fined do not contribute anything, supporting Mr Clarke’s contention that criminals who commit the most serious of crimes should pay toward compensating victims of their crimes.

Would a complete ban on claims made by convicted criminals be a better approach, both for simplicity and public interest? This approach could equally be unfair to victims with minor or non-violent criminal records.

This is by no means a straighforward issue.  It will be interesting to see the full reform plans from Mr Clarke and, ultimately, what difference they will make to the operation of the scheme as far as victims are concerned.

At BClaims we have extensive experience of dealing with CICA claims and appeals. Please get in touch with us for further information.

Brief encounter

Published January 6, 2012 trips and slips Leave a Comment

The recent decision in the case of Colin Syme v East Lothian Council represents something of a victory for brevity.  So I will try to keep this short.

The case involves a tripping incident raised under the Sheriff Court personal injury procedure. The defenders took issue with the pursuer’s written pleadings and opposed the fixing of a proof. Their position was that certain aspects of the written case were irrelevant and should not be allowed to proceed as part of the case and, moreover, if those averments were deleted there would be no relevant averments of fault at all. They raised those arguments at a “debate” – a hearing where parties can raise legal issues which go to the heart of the case.

Having only ever worked with simplified pleadings, I have heard many anecdotes from senior colleagues beginning “Back in my day…” and often ending with war tales about lengthy debates or convoluted pleadings covering all bases but addressing none. So I geared myself up for a lengthy read…

It was all over very quickly. 

Sheriff Braid begins by commenting that pursuers using the simplified procedure are now expected to make only limited averments, including “brief facts necessary to establish the claim” and “brief details of the injuries and heads of claim”. He considered that the pursuer’s case was “sufficiently relevant and precise”.  A proof should be allowed even when the pursuer’s averments are brief (which he emphasises they should be) even when the averments would not have been sufficient under traditional rules of pleading – subject only to a requirement that a defender be given fair notice of the case he has to meet.  However, he comments that even then any deficiency in the pursuer’s pleadings is as likely to be dealt with by disallowing evidence at a proof rather than at any earlier stage.

Sheriff Braid went further though and also questioned whether the rules really allowed him to fix a debate in any event. That casts doubt on whether there is still any role at all for legal debates  in personal injury cases in the sheriff court. It is certainly generally accepted that there is less scope now to succeed in a case using an argument based purely on the way in which a written case has been framed, but interpreting the rules as getting rid of debates completely would be a major step.

 

Greg Mcewen

Secondary victims, Boots the Chemist, crystal balls and a rolling pin….Simples?

Published November 17, 2011 public liability Leave a Comment

Just when you think the Court of Session in Edinburgh has had its fill of interesting and different cases for 2011 (see David’s blog on the golf case here ) even odder cases pop up with fascinating facts and legal issues. Perhaps just an average week in the life of a judge…

The case in question involves a 20 month year old infant suffering a fractured skull after being hit in the head by a rolling pin dropped from a 3rd floor window. Boots have admitted liability in respect of the child’s claim but liability to the other members of the family is disputed. Quite what Boots are doing with rolling pins falling from windows in shopping centres in Dundee is unknown and not detailed in Lord Stewart’s excellent description of the accident in paragraph 4 and 5 here .

The child was accompanied by her mother, grandmother and grandfather at the time of the accident but only the grandmother was close to the infant when the baking implement fell. All three have brought actions against Boots for “distress and alarm and various mental symptoms”.  This relatively straightforward event gives rise to all manner of interesting legal argument. Which family members are “primary” and which “secondary” victims?  Is the current written case sufficiently detailed to allow secondary victims to argue they are in any way injured?

The question before the Court at this stage (evidence has yet to be heard), was whether to continue to run the case under the dedicated Personal Injury procedure rules or return to “ordinary” procedure. The latter requires a far more detailed written case. Boots argued the cases of mother, grandmother and grandfather, as secondary victims would involve complexity and require detailed pleadings. To be successful, a secondary victims would require to be suffering from a recognisable psychiatric conditions, something litigation arising from the Hillsborough tragedy established.

This case is at an early stage so to what extent the secondary victims are likely to succeed remains to be seen. However, the Court decided the simplified Personal Injury procedure was the correct way to continue. As a compromise, changes to the written case to be more specific about the “mental symptoms” suffered by the parent and grandparents have been promised by the pursuers’ agents.

 The court recognised that in deciding whether the claim was suitable for personal injury procedure some element of “crystal ball gazing” is involved.  Law is indeed a sometimes mysterious art.

More generally, the decision is an encouraging sign for pursuers of the court supporting the use of PI procedure in cases involving secondary victims and clearly embracing the principle of simplified pleadings. Looking to the future, the dedicated Scottish Personal Injury Court proposed by the Lord Gill review of the Civil Courts in Scotland will surely operate along similar lines.

Simplicity is particularly useful when cases involve very simple things like rolling pins…

 

Ciaran Dougherty

Let the Golfer Beware

Published November 14, 2011 contributory negligence , public liability Leave a Comment

If you are like me and have played golf for a number of years, but yet are not surprised that your drives don’t always sail up the middle of the fairway, but rather take a weird and wonderful path in flight resulting in the final resting place being somewhat adrift from where you intended then the case of Anthony Phee v James Gordon & Niddry Castle Golf Club is a case to note carefully. 

Mr Gordon, an 18 handicap golfer, was playing a round at Niddry Castle Golf Club and had reached the 18th tee.  Just before he drove off he noted Mr Phee and 3 other players walking from the 6th green to the 7th tee down a path on one side of the 18th fairway.  Mr Gordon considered it safe to drive and duly did so. Unfortunately his drive, after initially going straight, veered violently to the left and hit Mr Phee in the eye, causing a significant injury.

Evidence was presented to the court from a number of experts including 2 professional golfers (one for each side).  Both largely agreed that the vast majority of golfers hit most of their shots from the tee within 15 degrees of either side of the desired target line.  It was established that the Pursuer was at a point which was 12 degrees to the left of Mr Gordon at the time he was hit.

The Pursuer’s case was based on the fact that Mr Gordon should not have played his shot from the 18th tee because it was unsafe to do so as Mr Phee was within his range both in distance and angle.  Mr Gordon’s position was that the shot he hit from the 18th tee (known as a duck hook) was a freak shot and, whilst foreseeable, it was not reasonably foreseeable.  The Golf Club was also sued on the basis that the layout of the course, particularly the proximity of the 18th fairway to the path leading from the 6th green to the 7th tee was unsafe and there were no signs up warning any users of the path about the risk of balls being driven from the 18th tee.  In the event, Mr Gordon was found 70% liable;  the Golf Club 30% liable.

This is an interesting case for all golfers.  It sets out quite clear rules to follow when deciding whether or not to take a shot.  It suggests that if anyone is within range of approximately 200 yards and in a 30 degree cone from the tee pointing to the line of target,  then they are at risk of being hit and so a golfer will be acting unsafely if he or she drives off from the tee. 

Interestingly, it appears to suggest that if, like me, some of your drives  can be well outwith that 30 degree cone and can traverse one if not 2 fairways, then if such a shot were to hit and injure another golfer, then no liability would follow!   That is on the basis that at the time when the shot was hit it was reasonable for the golfer to assume it was safe to do so as the way ahead was clear.

It was suggested by the defenders that Mr Phee was hit in the eye as the result of looking up to see where the ball was heading but this version was rejected by the judge who held that Mr Phee had ducked and placed his left hand over his head. 

The judge indicated that, in any event, looking up on hearing a shout of “fore” would not have amounted to contributory negligence. There was a very short lapse of time between the warning and the ball striking the pursuer, Mr Phee was a novice golfer unfamiliar with the course and with a sketchy knowledge of how to react to shouted warnings. His actions should not be “judged too finely”.

Still, this case is a lesson for all golfers – when you hear the shout of “fore” the best course of action is to duck, put your arms over your head and wait for at least 6 seconds, by which time the ball will either have hit you or, hopefully,  have landed elsewhere.

David Armstrong

Credit where credit hire’s due: Scottish update

Published November 4, 2011 damages , road traffic Leave a Comment

In the past year or so there’s been a surge of media coverage in the area of credit hire. The involvement of high profile figures such as footballer Darren Brent has helped make the topic more media friendly. The claim brought on his behalf boiled down to whether credit hire charges totalling £63,000 could be recovered from the third party insurers. With the figures (monetary and celebrity) involved, it’s no surprise the media were on the case.

In Scotland there has traditionally been a dearth of decisions as few cases on this topic proceeded to proof.  However, a flurry of recent judgments now provide a flavour of the Scottish judiciary’s approach to credit hire. In simple terms this is no different to that of the English courts, with Scottish judges seemingly content to follow the approach south of the border.

A judgement of Lord Turnbull in a 2010 Court of Session case outlines the basic approach to credit hire in no-nonsense terms. A claim for around £13,000 of hire charges following damage to a 14 year old car saw an award of a spot-hire rate of £39 per day. The Pursuer recovered £1,950. The hire car provided while the pursuer’s 14 year old Honda was being inspected was not deemed to be a suitable equivalent- the age of a car has to be considered along with the make and use it is put to.

The well established impecuniosity argument was considered by the Sheriff Court in Arbroath. Credit hire rates are only recoverable on a full basis where the Pursuer has no access to other sources of credit or savings. The Pursuer in this case had roughly £20,000 of credit card facility. Unsurprisingly he was not found to be impecunious and could not recover the credit hire market rates – spot hire rates were awarded.

The wordily named Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 have also been applied in the Scottish credit hire arena in one unreported Sheriff court decision. Credit hire agreements signed after 1 October 2008 in the home or place of work can be deemed unenforceable if the hire agreement does not contain a right to cancellation with a set period within which to do so. This has been a significant development which most credit hire organisations are now wise to, with cancellation notices are commonly included in the initial agreements. We are watching developments in England on this point closely as this is an area likely to develop further.

Earlier this year Lord McEwan dealt with a case where his final remarks make interesting reading:

“It is not for me to speculate or offer any further comment on what must be the obvious consequences in the insurance world over claims like these.“  

No comment is in itself a commentary!

The case turned on the factual basis of damage to the Pursuer’s car and whether as a result he was entitled to credit hire. There was little discussion over rates or what was recoverable. The case was decided in the Pursuer’s favour but there was criticism of the lack of evidence before the Court.

In summary,Scotland is still playing follow-my-leader behind the English courts.  We’re continuing to follow the emerging English case law closely to ensure optimum recovery for our credit hire clients.

Feel free to field your queries to us directly here or on Twitter.

Ciaran Dougherty

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