Quite a lot of Personal Injury going on in the Court of Appeal in the last week, and none of it particularly claimant friendly!
To kick off the year, in our second appeal in Chell v Tarmac [2022] EWCA Civ 7, the claimant had been injured by a fellow worker who exploded an air gun pellet target very close to his ear as he was working in the quarry workshop, an action which the trial circuit judge found was a ‘practical joke at the claimant’s expense’ arising directly from ‘tensions’ in the workplace. The employer had been notified of those tensions, but not investigated or taken any action, even though one of its HR managers lodged a statement in which she said that any such report required investigation and the application of the company's Bullying and Harassment Policy. However, the Court of Appeal took the same view as had Martin Spencer J in the first appeal, namely that the judge was entitled to find that there was not foreseeable risk of injury founding a duty of care in the employer to take any steps in response to the report of workplace tension, and he had also correctly identified and applied the law of vicarious liability in holding that there was not a ‘close connection’ between the co-worker’s work for the employer and that action against the claimant despite that background of workplace ‘tension’. We are taking stock... 😉
Then today, the Court of Appeal rejected the claims of claimants in Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [2022] EWCA Civ 12. Each of the claimants had sustained psychiatric injury after witnessing the death or other horrific event suffered by a close relative because of earlier clinical negligence and claimed as ‘secondary victims’ in accordance with the now familiar Hillsborough cases’ ‘control tests’ (Alcock, White). In two cases the claims had been allowed, in the third it was dismissed. With some apparent discomfort, the Court of Appeal (Sir Geoffrey Vos MR presiding) held that it was bound by its earlier decision in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, [2014] Q.B. 150, [2013] 3 WLUK 448 (Lord Dyson MR presiding) which provided that such claims could not succeed where the psychiatric injury was caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event. The Court of Appeal has said that the issue merits consideration by the Supreme Court, so we can anticipate a further appeal in that case at least.
Onward and upward.... No-one said it was going to be easy. Happy Newish Year everyone!
