In the fifth of a series of updates, Dr Dan Jacklin and Kyran Kanda have compiled an update on Personal Injury and Clinical Negligence cases which have been in the courts this year.
PERSONAL INJURY
DHV (A Protected Party through his Litigation Friend WTX) v Motor Insurers’ Bureau [2025] EWHC 2002 (KB)
Travel claim – RTA – Conduct of experts
In July 2017, a British man, DHV, left D’Or Yacht Club in Spain during the early hours of the morning to find a taxi. He was hit by a white Hyundai H1 minivan which dragged him under its axel for nearly 200 feet. He sustained a severe brain injury. Skin and flesh were sheared from his shoulder and back. The driver of the Spanish-registered vehicle was uninsured.
The claim was brought in England against the MIB, which was standing-in for Consorcio, the guarantee fund which covers uninsured drivers in Spain. There is no dispute that a claim can be brought against the MIB in this way. The law on that point was settled in Moreno v The MIB [2016] UKSC 52 at paragraphs 2-17.
Readers will note that this case arose after the Brexit vote in 2016 but before the end of the transition period on 31 December 2020. Mr Dexter Dias set out a judgment in relation to fourteen key issues before the court, including: (11) Whether Recital 33 of the Rome II applied to the assessment of the claimant’s compensation, and if so, its effect, alone or in combination with article 33.
In simple terms, the key issue at the heart of the case was that a claimant would likely receive less compensation if Spanish law is applied rather than English law to the quantification of losses. The Claimant, unsuccessfully, attempted to rely on Recital 33 of Rome II to escape that end for the following reasons:
- A recital is not a rule, and the highest Spanish court would not treat it as one;
- No Spanish authority to support the use of Recital 33 to award compensation for actual losses in the state of habitual residence at a greater level than would be awarded to an injured person in Spain was before the court;
- No Spanish authority that permitted compensation for actual losses in a country of habitual residence outside Spain beyond what is specified in the Baremo scheme was before the court.
Mr Dexter Dias reached his conclusion at paragraph [154]:
“The Spanish court, even taking account of recital 33 in combination with article 33 of the Baremo, would not go outside the rules and limits prescribed in the Baremo scheme to make an award for actual losses in a country of habitual residence that could not be awarded in a Spanish case without the foreign element.”
Issue 14 was not resolved by the judgment, as further submissions would be heard before any final order was made. The judgment is essential reading for practitioners involved in cross-border disputes.
By Daniel Jacklin
PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126
Withholding orders – reporting restrictions orders – anonymity orders – children and protected parties – open justice
This case concerned the granting of anonymity orders in personal injury claims brought by children or protected parties.
Nicklin J had refused to grant both a withholding order and a reporting restrictions order in the claim for two reasons. Firstly, there was no statutory foundation for making a reporting restrictions order in the absence of a withholding order. Secondly, material concerning the claimant and his claim was already in the public domain.
The Court of Appeal allowed the claimant’s appeal, concluding that an anonymity order was strictly necessary in this case in the interests of justice. It identified two poignant reasons for granting the order: (i) the extreme vulnerability of the claimant and (ii) the serious infringement upon the claimant’s private and family life in relation to medical details, family circumstances and financial matters if the details were reported in the media.
The Court provided the following helpful guidelines:
- Case law demonstrates there is a limited common law power to derogate from the principle of open justice in civil or family court proceedings by making, within court proceedings, both a withholding order and a reporting restrictions order (para 8);
- The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification. The order must be strictly necessary in the interests of justice (para 91);
- The guidance in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 paragraph 35 (a case dealing with the different context of approval applications under CPR 21.10) remains good law and should be followed, but the Court modified the principles slightly (see paras 99-102);
- Case law demonstrates that the common law power can be deployed to protect the interest of vulnerable parties, such as children and protected parties (para 103);
- The fact that there has been previous publicity is not an automatic bar to the making of an order. In the present appeal, for example, the previous publicity meant that the anonymity order could only be prospective, not retrospective (para 104);
- Case law identifies the risks that may make anonymity necessary as (i) risks to the safety of a party or a witness; (ii) risks to the health of a vulnerable person; (iii) risks of a person suffering commercial ruin; and (iv) the painful and humiliating disclosure of personal information (para 108);
- ‘Jigsaw identification’ is not a reason to refuse a claimant “a modicum of protection” by such an order (para 112).
By Kyran Kanda
William Brown v Morgan Sindall Construction and Infrastructure Ltd [2025] EWHC 2204 (KB)
Negligence – nuisance – OLA – road cycling
The claimant fell from his bike because it collided with a ‘kingpin’ cylinder in a cycle lane installed by the Defendant. The claimant was left with a life-long physical limitation to his left arm and with PTSD.
The wand associated with the kingpin cylinder was missing and had not been replaced. There was no detailed risk assessment or system of inspection or monitoring implemented. The Defendant had also installed the kingpins otherwise than in accordance with the manufacturer’s instructions.
The wand had been removed around July-August 2019. The accident occurred on 5 September 2019. HHJ Tucker (sitting as a High Court Judge) found that the Defendant was aware, or should have been aware, by at the latest mid-August 2019 that there was a recurring problem with the cycle wands being detached from their bases by anti-social behaviour and that this created a hazard for cyclists.
HHJ Tucker found that the presence of an unmarked and non-reflective base upon the highway caused a nuisance to cyclists and road users. Further, the system of inspection and monitoring was limited and/or negligently implemented.
A notably low degree of contributory fault was attributed to the cyclist of 5% for cycling too close to the white line (rather than substantially between the white lines).
At the end of the judgment, HHJ Tucker provides a useful summary of the underlying case law behind highways claims in negligence and nuisance.
By Daniel Jacklin
The Royal Embassy of Saudi Arabia (Cultural Bureau) v Abir Alhayali [2025] EWCA Civ 1162
Covert surveillance – psychiatric injury – disability discrimination – state immunity
The Claimant brought Employment Tribunal proceedings against the Respondent Embassy. The Embassy asserted state immunity in its Grounds of Resistance. The Embassy conceded, by way of email from its solicitors Howard Kennedy LLP, that the Employment Tribunal had jurisdiction over those parts of the Claimant’s claims which were derived from European Union law. Proceedings progressed for two years. The Embassy then sought to reassert state immunity on the grounds that the Howard Kennedy email had not been authorised by the Respondent.
This appeal concerned three issues:
- Whether the ET had erred in finding that the Embassy had submitted to its jurisdiction;
- Whether the ET had erred in rejecting the Embassy’s claim to state immunity from the employment claims as a whole by virtue of s 4 State Immunity Act 1978;
- Whether the ET had erred in rejecting the claim to state immunity in respect of Ms Alhayali’s claim for psychiatric injury.
On the second issue, the Court found that the ET had applied the correct legal test to the question of state immunity in accordance with the guidance given by Lord Sumption in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62. The correct question was whether the Claimant’s functions were sufficiently close to the exercise of sovereign authority, as opposed to being merely ancillary and supportive. The ET’s judgment was “carefully reasoned”. It made detailed findings that “all the Claimant’s duties were truly ancillary and supportive” and that the Claimant “did not have any important decision-making functions”. The Embassy did not have state immunity by virtue of s 4 SIA.
That finding made the first and third issues academic. Nevertheless, on the first issue the Court characterised as “worrying” the decision in Republic of Yemen v Aziz [2005] ICR 1391 which suggests that it is acceptable for a respondent to reassert state immunity on the basis that solicitors who had apparently submitted to the ET’s jurisdiction on behalf of the respondent state had no authority to do so.
On the third issue, the Claimant argued that her discrimination claims were, in effect, personal injury claims such that the Embassy did not enjoy immunity as per s 5 SIA. The Court, however, opined that ss 4 and 16 SIA preclude an embassy employee from bringing an employment claim that she has been discriminated against and thereby suffered psychiatric injury. The earlier case of Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139 was wrong on this point but not overruled in light of this being obiter. This was to be contrasted with an ordinary personal injury claim – for either physical or physiatry injury – brought by any person without recourse to employment law. In that type of claim, there is no obvious rationale for conferring immunity on the state.
By Kyran Kanda
Stephenson v First-Tier Tribunal (Social Entitlement Chamber [2025] EWCA Civ 1160
2001 CICS – other resultant losses – accommodation claims
The appeal raised a discrete issue about the proper construction of paragraph 42(b) of the 2001 Criminal Injuries Compensation Scheme (‘CICS’) and the phrase ‘resultant loss’. The scheme has since been followed by the 2008 and then 2012 CICS schemes.
At first instance, the FTT found that the costs of an extension to Mrs Treacey’s house was not a resultant loss because it did not arise due to the loss of parental services. Concerns were raised about significantly widening the remit of the Scheme.
The FTT also found that trust and Court of Protection costs arose because of Dominic’s pre-existing disability and not as a result of a loss of parental services such that they also were not a resultant loss.
The UT upheld the FTT’s decision on the same basis. Permission was granted to appeal.
There were four grounds of appeal before the Court of Appeal which can be summarised as arguing that the lower courts misdirected themselves on the meaning of ‘resultant loss’. Dingemans LJ gave the lead judgment with which Baker LJ and Bean LJ agreed.
The relevant words of paragraph 42(b) in the 2001 scheme were as follows: “such other payments as a claims officer considers reasonable to meet other resultant losses.”
Dingemans LJ said, at paragraph 35, that the losses must have resulted from some act, which in this case was the manslaughter of Dominic’s mum by the hand of his father which led to the loss of parental services for which compensation was provided under the tariff award in paragraph 42(a) of the 2001 scheme.
The need for adapted accommodation was said to arise from Dominic’s pre-existing congenital disability and other medical problems, not from the unlawful killing of his mother. The other disputed losses were also said to have arisen because of Dominic’s needs pre-existing his mother’s death. The judgment provides useful authority for claims relying on paragraph 42(b) of the 2001 scheme.
By Daniel Jacklin
CLINICAL NEGLIGENCE
HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust [2025] EWHC 2121 (KB)
Brain injury – surgical injury – failure to advise
The claimant was born with a congenital heart issue. She underwent elective heart surgery in May 2022 at 25-years-old. Mr Nassar performed the surgery. It involved cutting through the sternum, a procedure called a ‘sternotomy’. In doing so, Mr Nassar unintentionally cut the wall of the Claimant’s aorta causing catastrophic haemorrhaging. It took 20 minutes to bring the bleeding under control, by which time, the claimant had sustained a serious hypoxic brain injury.
The claim alleges: (1) the consenting procedure was inadequate and occurred too late (on the day of the surgery), (2) that the pre-operative planning/preparation and risk management were inadequate, (3) that the injury caused to the aorta was itself negligent.
Three preliminary issues were to be determined by the court on this occasion: (1) Had there been a breach of duty, (2) how much time would have been saved but for the breach of duty, (3) if a breach of the consent procedure is found, would the claimant have likely opted to postpone her surgery in favour of a second opinion?
On Issue (1), Geraint Webb KC (sitting as a Deputy High Court Judge) found that Mr Nassar was not negligent in his control of the oscillating saw during surgery and the interoperative injury was not the result of any negligence on his part.
On Issue (2), the court was unable to determine the time saved in the absence of causation expert evidence of the neurological consequences caused, if any, by the delay.
On Issue (3), the court found that it was not negligent to delegate the consenting process to his registrar. A minor difference in opinion about the risk of mortality was not sufficient to cause the consenting process to be deemed negligent.
However, the judge found it was negligent in some circumstances not to expose the femoral vessels in advance of the sternotomy given the medium-to-high risk of aortic injury. The claimant had an enlarged aorta, and exposing the femoral vessels at the outset would have reduced the risk of serious injury, an option the claimant, with three young children, would likely have taken.
The Defendant was deemed to have fallen below the standard expected in failing to arrange an outpatient appointment to discuss the risks in advance of the day of surgery. Spending only three minutes on the risks of the operation with a complex patient was negligent.
By Daniel Jacklin
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
