Disclosure of video evidence – Douglas v O’Neill.

This High Court decision helpfully summarises the existing law relating to CPR 31 and (late) disclosure of video footage.

The claimant (C) was badly injured when knocked over by a car driven by the drunken defendant.

The injuries included factures to the skull, tibia, pubis ramis, and the T7 vertebra.

He was in a coma for seven days.

As a consequence, it was alleged that he had, among other things, difficulties with mobility and driving.

Video footage showed him driving a sports car, going to a bank, a service station and a supermarket.

All four of the experts called by the defendant stated that the activities were incompatible with the continuing symptoms that C described.

This footage was disclosed, accompanied by a part 36 Quantum Offer, six weeks before the trial.

The claimant objected to its inclusion in the evidence.

Her ladyship had to decide what was a reasonable time at which the defendants could release the footage after it had been obtained.

In O’Leary v Tunnelcraft Limited, 2009 [EWHC] 3438, Judge Collander QC identified that a ‘trial by ambush’ must be avoided.

The defendants ­disclosed their videotape 31 days pre-trial. In Rall v Hume 2001 [EWCA] Civ 146, Potter LJ held that ‘the matter should be ventilated at the first ­practicable opportunity’.

In short, while still upholding the overriding objective of CPR 1.1, there must be a fair opportunity for the claimant’s legal team to review the evidence and seek the views of the claimant and his experts.

In the instant case, the court held that it was reasonable for the defendant to wait for C to nail his colours to the mast of his damages claim by serving evidence in the form of his personal witness statement (not an expert’s report) stating the nature of his alleged disability to which is, of course, appended a statement of truth.

It is, therefore, critical for claimants to ensure that their witness evidence adequately addresses the full extent of any residual symptoms and the disability they create otherwise their lawyer may well find a horror film belatedly arriving in their pigeon hole.

Assessing an unsafe system of work

Vaile v London Borough of Havering.

The claimant worked at a school for children with learning difficulties.

One of the pupils, X, assaulted her causing a multiple detached retina and severe psychological injury resulting in depression and an inability to work.

Before this she had been a devoted teacher.

Three weeks earlier X had also assaulted the claimant, hitting her on the face and head. Between the two assaults, X had also grabbed and bruised the hand of another teacher.

At issue was whether X was autistic.

The evidence showed that the school was aware, from an audit, that X suffered from autistic spectrum disorder (ASD).

The employer did not, however, advise the claimant.

Furthermore, she was not provided with any special techniques or training in respect of how to handle X.

The two experts in the case agreed that appropriate training ought to have been provided for teaching ASD sufferers and, specifically, a structured and consistent approach designed for X.

At first instance, the judge found that there was no unsafe system of work and, even if there had been negligence, it was not causative.

On appeal, Longmore LJ, giving the lead judgment in a unanimous decision, disagreed.

He stated: ‘The injury that occurred is of a kind one might expect if a risk assessment was not done, or if the right information and structure was not in place in order to avoid the identified risk.’

The defendants’ argument was that the claimant could not show what might have been done to prevent the assault.

His lordship helpfully reminded us of the words of Toulston LJ in Drake v Harbour [2008] EWCA Civ 225: ‘Where a claimant proves that a defendant was negligent and a loss ensured which is of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism.’

The point is that no steps were taken to address X’s problems.

The claimant was, therefore, exposed to X in the raw with neither knowledge of his condition nor techniques available to assist in handling him.

It was not for her, as an employee, to design the system of work.

Steps could have been taken by the employer which would likely have prevented a recurrence of X’s behaviour and, therefore, reduced the risk of an assault.

This is a common-sense decision. The system of work was clearly inadequate.

A risk assessment ought to have been carried out identifying the risk; steps should then have been taken to address the risk, and the risk would then have been reduced.

Such steps were not taken.

As a result a foreseeable risk to the claimant was increased.

Simon Allen, Russell, Jones & Walker