Dispute Resolution Unit 5

A man is suing his former employers for damages arising out of an accident suffered at work. The claim is denied. The man knows that a former work colleague could give evidence about the poor safety practices within the firm that contributed towards his accident. However, the ex-colleague has refused to give a witness statement to the man’s solicitor as she is worried that if she does it will affect her future employment.

The parties have been directed to exchange witness statements by the end of next month.

What advice should the man be given about the ex-colleague’s evidence?

The man should apply to the court without notice for an order to serve the ex-colleague’s witness summary.

By way of information, CPR rule 32.10 provides that if a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission. So, the without notice application should be made now before the deadline to serve witness statements has expired. It should explain why only a summary can be provided and the ex-colleague’s reasons for refusing to provide a statement. The witness summary must contain (a) the evidence that would otherwise go in the ex-colleague’s witness statement; (b) that the ex-colleague will give evidence about the defendant’s safety practices; and (c) the ex-colleague’s name and address. If the application is granted, the ex-colleague can be compelled to attend the trial to answer questions by serving a witness summons on her (see Unit 6).

A man has brought a claim in the County Court against his former employers for damages for personal injuries suffered as a result of an accident at work. Liability for the claim is admitted but quantum is disputed including claims for past and future loss of earnings. Four months before the trial of the claim, the parties exchanged witness statements in accordance with directions made by the Court. Ten days before the trial, the man takes up employment for the first time since the accident.

On the first morning of the trial, the man is called to give oral evidence. His advocate makes an oral application to the trial judge for permission for the man to answer questions in examination-in-chief about his recent employment and to amplify his witness statement as to the circumstances of the accident.

What decision is the trial judge most likely to make in relation to this application?

To permit the man to answer questions but only about his recent employment.

By way of information, CPR rule 32.5(3) provides that a witness giving oral evidence at trial may with the permission of the court (a) amplify his witness statement and (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties. However, by rule 32.5(4) the court will give permission only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement. On the facts, liability for the claim is admitted. Therefore, the circumstances of the accident are not in issue and there is no good reason to allow the man to give additional examination-in-chief on it. However, quantum is in dispute and that includes the man’s claim for future loss of earnings. The man’s witness statement was exchanged four months before trial. The fact that he started a new job ten days before trial is relevant to the disputed issue of his future loss of earnings. It is a new matter that has arisen since his witness statement was served. Permission should therefore be given for additional examination-in-chief on the issue pursuant to rule 32.5(3)(b). There is no good reason on the facts for the trial judge not to grant permission.

An employee, who is employed as a travelling salesman, drives his van at high speed whenever he goes to visit potential new customers. He does this in order to maximise the number of sales he can potentially make each day. His employer pays him a small amount of commission for every sale he makes of the employer’s products. His employer is aware of his high-speed driving and has frequently instructed the employee not to drive at high speed.

Last week, whilst driving to visit potential new customers, the employee carelessly approached a bend at high speed and collided with an oncoming car. The driver of the car was driving carefully at the time and sustained a broken arm in the accident.

What best describes whether the employee’s employer will be vicariously liable for the broken arm suffered by the car driver?

The employer will be vicariously liable because the employee’s negligent driving occurred in the course of his employment.

The elements required for vicarious liability to exist are, an employee committing a tort (in this case the tort of negligence) in the course of their employment. An employee will still be acting in the course of their employment, even if they contravene their employer’s express instructions, if the employee’s actions further their employer’s business (Rose v Plenty [1976] 1 All ER 97). The employee’s high-speed driving does benefit his employer because it enables the employee to visit more potential new customers, and the employer benefits financially from every sale the employee makes of the employer’s products.

Part of a claimant’s multi-million-pound personal injury claim is that he will never make a full recovery and will be unable to return to any type of employment for at least three years. This is supported by the claimant’s medical expert’s report.

The claimant has been examined by the defendant’s medical expert. The defendant’s medical expert’s report includes the prognosis that the claimant is likely to make a full recovery and will be able to return to some form of employment within two years.

The parties medical experts’ reports agree and disagree on various other complex aspects of liability, causation and quantum.

The parties have exchanged their medical experts’ reports and the experts have answered written questions put to them by the other side. The first case management conference is scheduled for next week.

What order is the court most likely to make in relation to the expert evidence at this stage in proceedings?

Direct that a without prejudice discussion should take place between the experts to identify the extent of the agreement between them and the points of and reasons for any disagreement.

On the facts, the medical experts agree and disagree on various other aspects of the claim, particular the issue of whether or not the claimant will make a full or only partial recovery and what type of work he may eventually be able to take up. By way of information, CPR, rule 35.12(1) provides that the court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues. PD 35 para 9.2 adds that the purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify (i) the extent of the agreement between them; (ii) the points of and short reasons for any disagreement; (iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and (iv) any further material issues not raised and the extent to which these issues are agreed.

A man has brought a claim against his employer for damages for personal injury arising from an accident at work due to his employer’s negligence. The claim is defended. The parties have just exchanged their expert’s reports on the issue of liability in accordance with the court’s case management direction.

The employer’s solicitor has written to the man’s solicitor complaining that the man’s expert’s report does not comply with the requirements of the Civil Procedure Rules for the following reasons:

• Whilst tests have been carried out on the equipment used by the man at the employer’s premises, it is unclear whether the expert or someone else conducted these tests; and

• The report is addressed to the man but it should also be addressed to the employers; and

• Whilst the expert has acknowledged that there is a range of opinion on the use of different protective guards on the equipment used by the man, the report does not include any reasons for the expert’s own opinion on those guards; and

• It is not admissible for the expert to give an opinion on the disputed issue of quantum; and

• The statement of truth incorrectly reads, ‘I understand my duty to the court and I confirm that I have complied with this and that I am aware of the requirements of the Civil Procedure Rules, Part 35 and the Guidance for the Instruction of Experts in Civil Claims 2014.’

What best represents the position regarding the employer’s allegations that the man’s expert’s report does not comply with the requirements of the Civil Procedure Rules?

The report should have been addressed to the court dealing with the claim.

A man was convicted at the Crown Court of defrauding a company by dishonestly dealing in counterfeit products of the company. The man had pleaded not guilty. The company has commenced High Court proceedings against the man claiming damages for infringements of its copyrights and trademarks. In its particulars of claim, the company has relied on the man’s conviction. In his defence, the man admits the conviction but states that it was erroneous.

What advice should be given to the company as to the burden and standard of proof at the trial?

The man has the burden of establishing on the balance of probabilities that he did not infringe the company’s copyrights and trademarks.

In its particulars of claim, the company has relied on the man’s conviction. The man’s defence admits the conviction but asserts that it was erroneous. Section 11(1) of the Civil Evidence Act 1968 applies here on the facts. The man was convicted of dishonestly dealing in counterfeit products of the company. The effect of section 11(2)(a) is to reverse the burden of proof. In the civil proceedings, the company will not start the trial with the burden of proof. It will be for the man to prove that he did not infringe the company’s copyrights and trademarks and that will be on the civil standard of proof, namely the balance of probabilities.