In the first of a series of updates, Dan Jacklin has compiled an update on Personal Injury and Clinical Negligence cases which have been in the courts this year.
PERSONAL INJURY
Mark Dobson v The Chief Constable of Leicestershire Police [2025] EWHC 272 (KB)
Personal Injury – Public Authority – Mental Health Act
Mr Dobson was an insulin-dependent diabetic who lived a chaotic life drinking alcohol and was abusing substances; he was essentially homeless, choosing to live in an outbuilding.
Mr Dobson claimed the Defendant had assumed a responsibility to protect him from harm. He claimed that the Defendant breached their duty of care towards him by failing to treat him as a suicide risk and for not ensuring he was properly assessed under the Mental Health Act 1983. The allegations were that the Defendant failed to act to detain him over the Christmas period.
The general rule is that a public authority is under no general duty to protect someone from themselves or others, unless they assume responsibility to protect that person (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4). The Defendant accepted that they had assumed responsibility for Mr Dobson whilst he was in custody. The court accepted that duty extended to ensuring safe release.
As for any assumption of responsibility, HHJ Bird reiterated that the starting point is to determine what the Defendant is alleged to have assumed responsibility for. The court determined that if the Defendant officers “could and should” have exercised their powers properly whilst Mr Dobson was in custody, then he remained in their control after release.
The court found that the Defendant was entitled, based on Mr Dobson’s presentation, to conclude he did not require an assessment under the 1983 Act or as a matter of common law necessity. The court found that section 136 limits the common law right in which a constable might remove and detain a person on mental health grounds. The court, therefore, found that the Defendant had not assumed responsibility for Mr Dobson beyond his release from custody.
R&B Plastering Limited v UK Insurance Limited [2025] EWHC 719 (KB)
Personal Injury – Appeal – Findings of Fact – Contribution
On 24 July 2020, Mr Eckford accepted a Part 36 offer from the Claimant in relation to a personal injury claim in relation to an accident Mr Eckford suffered whilst working as a plaster on a building site on 27 July 2017.
The Claimant sought a contribution from the Defendant who was the public liability insurer for a building firm called Robert Norman Construction Ltd (‘RNC’) which had gone into voluntary liquidation on or about 17 February 2020. RNC was the main contractor for the building site where the accident occurred.
At first instance, the judge was asked to conduct what was effectively a mini-trial of a hypothetical claim by Mr Eckford against the Claimant and RNC.
The appeal mounted five challenges based on the facts as they were found at first instance relating to contributory negligence, breach of duty, two specific facts in the case, and that it was wrong in law to allow recovery of a rehabilitation payment made by the insurers of R&B to Mr Eckford because they were “not in bona fide settlement or compromise of the claim”.
Foster J restated that it is trite law that appeal courts will interfere with the findings of fact and inferences drawn by the first instance judge, emphasising it is a high hurdle to surmount (Fage UK Limited and Anor v Chabani Limited and Anor [2014] EWCA Civ 5; Henderson v Foxworth Investments Limited [2014] UKSC 41).
All grounds of appeal were dismissed. Of note, was a restatement of the basic entitlement to contribution under the 1978 Act, which is not restricted to damages but includes costs also, as Hadley v Przybylo [2024] EWCA Civ 250 recently made clear.
Sebastian Braithwaite v London Borough of Lewisham [2025] EWHC 782 (KB)
Personal Injury – Appeal – RTA – Motorcyclist – Contributory Negligence
On 20 March 2019, at approximately 22:00, the Claimant made a ‘snap’ decision to turn right into a one-way road, with a 20 mph speed limit, whilst riding his motorcycle, and collided with a 75cm kerb of a build-out. The Claimant averred that the design of the road, which had been in place since 2000, was a dangerous hazard/trap.
At first instance, the trial judge found that the Claimant was likely travelling between 20-25 mph when the collision occurred. He disagreed that the build out presented a real source of danger for reasonably careful motorcyclists, notwithstanding there had been some relatively minor unreported incidents over a 20 year period at the junction. The fact the Defendant made substantial changes to the junction post-accident did not mean it was a trap before the improvements.
On appeal, seven grounds were advanced. The court cited, with authority, that the case was based on the principle established in Yetkin v Mahmood [2010] EWCA Civ 776; that the Defendant would be liable if he had created a night-time danger without adequate warning signs or other mitigation.
Cotter J restated that a failure to re-paint a white line at a junction was not a failure to maintain for the purposes of section 41 of the Highways Act 1980, citing with authority Gorringe v Calderdale [2004] UKHL 15, which itself involved a highways authority that failed to paint the word ‘SLOW’ on the road surface. Cotter J upheld that the trial judge was entitled to consider, in assessing blameworthiness, the Claimant travelling 5 mph in excess of the 20 mph speed restriction. Further, he dismissed the post-accident works on the junction as evidence of dangerousness. The learned judge upheld the trial judge’s finding that the Appellant was 75% contributory negligent. The appeal was dismissed.
Hazel Boyd v Debbie Hughes [2025] EWHC 435 (KB)
Personal Injury – Animals Act 1971 – Horse Riding – Fundamental Dishonesty
On 23 June 2020, the Claimant was employed as a rider and stable hand when she fell from a cantering horse, ‘Foxy’, and sustained a serious injury to her right arm. The Claimant averred that Foxy was known to shy/jink more easily than other horses. The claim was brought exclusively under section 2(2) of the Animals Act 1971.
Cotter J found that Foxy did not possess any characteristics not normally found in horses and that whatever caused it to jink/shy sharply to the right had not be established on the balance of probabilities.
Further, the learned judge restated the position on the meaning of likely as set out in Turnbull v Warrener [2012] EWCA Civ 41 by Kay LJ. Cotter J said he was not satisfied that it was a reasonable expectation that a rider would fall off and suffer serious injury if the horse were to jink/shy suddenly to the right. The claim, therefore, failed.
Cotter J went on to consider FD. The Claimant had sustained a very nasty injury. However, he found the Claimant had deliberately exaggerated her symptoms to both medical experts. She failed to inform either expert that she had resumed football and rugby training, as evidenced by the surveillance footage.
The learned judge said it was difficult to say how the exaggeration had inflated the claim beyond the PSLA valuation, and, after “significant hesitation”, held that the dishonesty did not go to the root of the claim. Cotter J said liability should have been tried as a preliminary issue and the case had wasted costs, disproportionately used the time of a High Court Judge, and wasted court resources.
Of note, the judge restated his opinion in Jennings [2023] EWHC 2037 that injury cases under £1 million may be suitable for transfer to the County Court and restated the importance of parties properly considering CPR PD 7A paragraph 2.
CLINICAL NEGLIGENCE
Misa Zgonec-Rozej and Ors v Stephen Pereira [2025] EWCA Civ 171
Clinical Negligence – Appeal – Suicide – Depression
Mr John Jones QC died on 18 April 2016 at the age of 48 after taking his own life. The claim was made by his dependent children against Dr Pereira, a consultant psychiatrist.
Mr Jones was admitted to a BUPA hospital for in-patient treatment on 8 March 2016. His psychiatric presentation deteriorated whilst in hospital. In the early hours of 18 April 2016, Mr Jones died at West Hampstead train station following a collision with a train.
At first instance, Bourne J made a number of criticisms of Dr Pereira, three of which amounted to a breach of duty. The slowness of arranging the individual psychotherapy was the key breach of duty. However, he dismissed the claim as he found the breaches did not cause or contribute to the death of Mr Jones.
On appeal, the Appellants argued that the conclusion on causation was illogical and inconsistent with the judge’s findings and that causation was made out on the facts. Alternatively, that the findings of fact made a material contribution to the death, relying on Bailey v MOD [2009] 1 WLR 1052 and Williams v Bermuda Hospitals Board [2016] UKPC 4.
The court restated the principle that it was for the Appellants to satisfy the court that the trial judge’s decision was plainly wrong. The court upheld the judge’s decision that causation had not been made out on the facts. Further, it dismissed the material contribution argument as the trial judge had found it was possible to make out causation on the facts, but the facts had failed to prove as such. Consequently, the appeal was dismissed.
James Donald Bartolomucci v Circle Health Group Limited [2025] EWHC 529 (KB)
Clinical Negligence – Surgery – Contract – Declaratory Relief
The Claimant underwent the Birmingham mid-head resection hip resurfacing procedure during which he experienced complications and suffered a catastrophic brain injury and now has very significant care needs.
The claim was brought entirely in contract, no tort claim was pleaded. The proceedings concerned an application for declaratory relief. The dispute was whether the Defendant was contractually liable for the acts and omissions of the treating clinicians, Dr McMinn and Dr Prasanna, who were self-employed. The Defendant admitted contractual responsibility for nursing care but not surgical care. It also admitted that the fixed price charged included the fees for the two consultants.
The court agreed the starting point for interpreting terms in contracts is the natural and ordinary meaning of the terms used. The parties and the court endorsed Lamesa and NRI Ltd as useful statements of the law in this area (Lamesa Investments Limited v Cynergy Bank Limited [2020] EWCA Civ 821; Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645).
The court restated the principle that a party to a contract may include within its contractual provisions performance obligations to be carried out by a third party [90]. The court found that the surgical services of the two consultants was to be provided in their own right, rather than by the Defendant [100]. The court found that the two consultants had entered into a contract with the Claimant in their own right [116-117].
HHJ Sheehan KC made reference to his comments in Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645 where he said, “the task of contractual interpretation is a unitary one involving an interactive process by which the competing interpretations are considered in light of the provisions and purpose of the contract and their commercial consequences”.
The application for declaratory relief was, therefore, dismissed.
