Oil firms knew decades ago fossil fuels posed grave health risks, files reveal
— Read on web.archive.org/web/20210318092944/https://amp.theguardian.com/environment/2021/mar/18/oil-industry-fossil-fuels-air-pollution-documents
Category: Uncategorized
In an important case for personal injury litigants and practitioners in respect of the cost of sleep-in care provision, the Supreme Court today handed down judgment in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (T/A Clifton House Residential Home) [2021] UKSC 8.
Government to rein in legal challenges against itself in Tory ‘attack on democracy’ – Mirror Online
— Read on www.mirror.co.uk/news/politics/government-rein-legal-challenges-against-23754828.amp
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Policing in a pandemic
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Schedule School 1 (No 5 Chambers)
twitter.com/no5chambers/status/1359494959406206981
Excellent video blog.
It includes reminders to think carefully about what multipliers should be used eg there will be a different multiplier if an expert gives a life expectancy that is specific to the claimant than would be used if a generic life expectancy is given.
It goes through all of the standard calculations and is essential viewing for when preparing a “proper schedule” after not doing one for some time.
It’s also very well presented.
Just because of a lot motorists speed, speeding doesn’t become acceptable
Watch Now: Bradfield-Kay v Cope: When logic trumps experience in respect of breach of duty
In the latest podcast from the Clinical Negligence group at No5 Barristers’ Chambers,David Tyack, Charlotte Robinson-Jones, Andrew Rhodes, and Neil Shastri-Hurst discussBradfield-Kay v Cope [2020] EWHC 1352 (QB), a case which raises interesting points on the issue of expert evidence.
The case of Bradfield-Kay v Cope highlights the importance of ensuring an expert’s evidence and reasoning is thoroughly tested. Whilst, on the face of it, a court may be drawn towards an expert with more specialist knowledge and experience, the importance of ensuring the logical basis of their reasoning cannot be understood. In the course of the podcast, the panel will be discussing how an accepted practice amongst practitioner will not always represent a defence and a court will be willing to challenge the rationale if it appears contradictory.
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Coronavirus: making schools safer
https://publications.parliament.uk/pa/cm5801/cmselect/cmpubacc/932/93202.htm
twitter.com/gabrielscally/status/1369455717535649799
There in no second tweet
https://twitter.com/gabrielscally/status/1369455726888947716?s=21
https://twitter.com/gabrielscally/status/1369455731146174464?s=21
https://twitter.com/zarahsultana/status/1369329605698592771?s=21
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Coronavirus: long covid
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Photos can speak volumes
Ministry of Justice says positive case does not indicate coronavirus was transmitted within a court building.
— Read on www.lawgazette.co.uk/news/covid-19-confirmed-at-95-courts-in-less-than-a-month/5107610.article
Ropewalk Personal Injury Blog | New Post
Ropewalk Personal Injury Blog | New Post
Richard Seabrook and Philip Godfrey provide an overview of the law on non-delegable duties of care following the decision of the High Court in Hopkins v (1) Akramy (2) Badger Group (3) NHS Commissioning Board [2020] EWHC 3445 (QB.
23 February 2021
Non-Delegable Duties of Care: A Review of Recent Developments in the Law
Author
Richard Seabrook
Author
Philip Godfrey
The recent case of Hopkins v (1) Akramy (2) Badger Group (3) NHS Commissioning Board[2020] EWHC 3445 (QB) considered whether an NHS Primary Care Trust owed a non-delegable duty of care with regard to healthcare services provided by a third party. HHJ Melissa Clarke, sitting as a Judge of the High Court, held that it did not. An in-depth analysis of the case by Philip Godfrey on our Clinical Negligence Blog can be found here. To read the full judgment, click here.
This blog post provides an overview of the legal considerations in this area and a summary of the various scenarios in which a non-delegable duty of care may arise either at common law or by statute.
The Non-Delegable Duty of Care
Where a duty of care is owed, in general terms it can be delegated. The exception to this is where the nature of the relationship is sufficient to render the duty owed a personal one, such that either by statute or common law the Courts recognise it should not be capable of delegation.
The classic example of the non-delegable duty of care is the special relationship between employer and employee. It is trite law that the duty of care of an employer is non-delegable: Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 and McDermid v Nash Dredging [1987] AC 906.
It is also well-established that the duty owed by a hospital trust to patients having treatment in their hospital is non-delegable, such that it would not matter whether the treatment was provided by an employee or a contractor: Cassidy v Ministry of Health [1951] 2 KB 343.
A number of cases have considered other situations in which a non-delegable duty of care may be owed.
Statute vs Common Law
In Hopkins, HHJ Clarke stressed the distinction between a statutory duty of care and a common law duty of care. Where a statute contemplates that a duty is delegable, the common law cannot override that: [40]. Accordingly, the first ’port of call’ will be to carefully examine the statutory provision that it is alleged gives rise to the non-delegable duty.
Statutory Non-Delegable Duties of Care
A continuing theme in the interpretation of whether a statutory duty is delegable is the distinction between cases where there was a duty to provide a service personally (in which case the duty would be non-delegable, as in Woodland v Swimming Teachers Association [2014] AC 537) and where the duty was to arrange for services to be provided (such as in Myton, below).
- Myton v Woods (1980) 79 LGR 28 – a local authority did not owe a non-delegable duty of care under ss. 39 and 55 of the Education Act 1944 with regard to the negligent actions of a taxi driver. The duty on the local authority was to “make such arrangements for the provision of transport […] for the purpose of facilitating the attendance of pupils at schools.” By arranging the taxi transport, the Local Authority had discharged its duty. The distinction was drawn between a duty to arrange and a duty to provide the service.
- Armes v Nottinghamshire County Council [2018] AC 355 – a local authority did not owe a statutory non-delegable duty of care under s. 21 of the Children Act 1980 to ensure that children in its care placed with foster carers were treated with reasonable care.
- Hopkins v (1) Akramy (2) Badger Group (3) NHS Commissioning Board [2020] EWHC 3445 (QB) – a PCT did not owe a non-delegable duty of care with regard to services provided by a third-party clinic pursuant to s. 83 of the NHS Act 2006. The Act specifically enabled the Trust to delegate the provision of services.
Common Law Non-Delegable Duties of Care
In Woodland v Swimming Teachers Association [2014] AC 537, the Supreme Court held that it would be fair, just and reasonable to impose a non-delegable duty of care at common law upon a school for the provision of a swimming lesson by an independent contractor. Lord Sumption JSC identified the following five factors at [23] as being relevant to the existence of a common law non-delegable duty of care:
- The Claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
- There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the Claimant in the actual custody, charge or care of the Defendant, and (ii) from which it is possible to impute to the Defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the Claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
- The Claimant has no control over how the Defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
- The Defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the Defendant’s custody or care of the Claimant and the element of control that goes with it.
- The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.
A number of cases have considered the existence of a common law non-delegable duty of care, including:
- A (a child) v Ministry of Defence [2005] QB 183 – the Ministry of Defence was not responsible at common law for the care provided to service personnel and their dependents in Germany. The Defendant had put in place measures for such treatment at German hospitals, which had previously been provided by British military hospitals. The treatment was arranged by the Army but was not provided by it.
- Farraj v King’s Healthcare NHS Trust[2010] 1 WLR 2139 – the Defendant NHS Trust did not owe a non-delegable duty of care for the testing of a tissue sample that was sent to an independent laboratory.
- GB v Home Office [2015] EWHC 819 (QB) – the Claimant was detained by the Defendant at the Yarl’s Wood Immigration Removal Centre, which was run by a private contractor. While there, a private GP prescribed anti-malarial medication which the Claimant alleged caused her to suffer a severe psychotic reaction. Taking into account the prescriptive rules and statutory regime, Coulson J held that the Defendant owed to the Claimant a non-delegable duty of care at common law.
- Razumas v Ministry of Justice [2018] EWHC 215 (QB) – the Ministry of Justice did not owe a common law non-delegable duty of care to a prisoner for health services, which were provided (at that time) by the Primary Care Trust.
There are further examples of non-delegable duties of care with regard to dangerous operations on the highway (see Penny v Wimbledon [1899] 2 QB 72), particularly hazardous operations, the escape of fire, and under the rule in Rylands v Fletcher (1868) LR 3 HL 330.
Conclusion
The cases in which a non-delegable duty of care will be imposed upon a Defendant are highly fact-specific. There is a mixture of common law legacy duties (such as Penny v Wimbledon), well-established personal duties (such as employers) and relationships where a particularly high degree of care is called for (such as Woodland and GB v Home Office).
The circumstances in which a Court will find a non-delegable statutory duty of care would appear to be limited, and will depend in large measure on the interpretation of the statute.
Practitioners in this area need to be aware of these legal principles.
For Claimants, a non-delegable duty of care can provide a route to compensating the victim of a tort when the true tortfeasor does not have the means to satisfy a Judgment, and thus provide the only possible route to making recovery.
For Defendants, proper analysis needs to be levelled at any accusation outside of the well-established fields that a duty of care was non-delegable. This is important where, in most cases, the Defendant to such a claim will be innocent of any wrongdoing themselves.
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Richard SeabrookCall: 1987View author’s profile
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Analysis: decision not to allow Begum back into UK seems to give complete discretion to home secretary
— Read on web.archive.org/web/20210227115658/https://amp.theguardian.com/uk-news/2021/feb/26/shamima-begum-ruling-sets-dangerous-precedent-say-legal-experts
Changes will come into force at the end of May with the advent of the new RTA claims portal.
— Read on www.lawgazette.co.uk/law/government-reveals-long-awaited-whiplash-rules-and-tariffs/5107581.article
Get free access to the complete judgment in Lucas v Barking, Havering & Redbridge Hospitals NHS Trust on CaseMine.
— Read on www.casemine.com/judgement/uk/5b46f1fa2c94e0775e7ef4f3
The government is battling ‘vaccine hesitancy’. How does sneaking through a massive deal with a controversial spy tech firm help?
— Read on www.opendemocracy.net/en/ournhs/why-were-suing-over-the-23m-nhs-data-deal-with-palantir/
Find out how to address different members of the judiciary
— Read on www.judiciary.uk/you-and-the-judiciary/what-do-i-call-judge/
Doughnut economIcs
— Read on time.com/5930093/amsterdam-doughnut-economics/
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Bird flu in humans
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Joke of a media
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FTP Prof David Miller
twitter.com/louis_allday/status/1362720573160366080
https://electronicintifada.net/content/we-must-resist-israels-war-british-universities/32391
https://twitter.com/asawinstanley/status/1366369456243564549?s=21
https://twitter.com/asawinstanley/status/1451587949779460134?s=21
https://twitter.com/kitklarenberg/status/1452969996020240387?s=21
https://twitter.com/billdevizes/status/1464960566620045316?s=21
https://twitter.com/lowkey0nline/status/1499417694889811972?s=21
https://twitter.com/support_miller/status/1508869859685421064?s=21&t=qxCOZnwkUf6BcKsq-HBEHg
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Uber (Supreme Court)
twitter.com/uksupremecourt/status/1362705940668153860
From GMB
After four court wins in four years, GMB Union will now consult with Uber driver members over their forthcoming compensation claim
GMB scored a ‘historic’ win as the Supreme Court today passed judgement in the union’s landmark worker’s rights case against Uber.
Judges ruled in GMB’s favour – determining that Uber drivers are not self-employed, but are workers entitled to workers’ rights including holiday pay, a guaranteed minimum wage and an entitlement to breaks.
This has been a gruelling four-year legal battle for our members – but it’s ended in a historic win. Uber must now stop wasting time and money pursuing lost legal causes and do what’s right by the drivers who prop up its empire.
Mick Rix, GMB National Officer
After winning the four-year legal battle, GMB will now consult with Uber driver members over their forthcoming compensation claim at the Employment Appeal Tribunal.
Lawyers Leigh Day, fighting the case on behalf of GMB, say tens of thousands of Uber drivers could be entitled to an average of £12,000 each in compensation.
Today’s ruling is the fourth time Uber has lost in court over its treatment of drivers.
In October 2016, the Central London Employment Tribunal ruled in GMB’s favour.
Instead of accepting the judgement of the courts, Uber took their case to the Employment Appeal Tribunal (EAT) in 2017, which also ruled against the ride-sharing company.
Then in 2018, the Court of Appeal judgement became Uber’s third legal defeat on this issue.
Mick Rix, GMB National Officer, said:
“This has been a gruelling four-year legal battle for our members – but it’s ended in a historic win.
“The Supreme Court has upheld the decision of three previous courts, backing up what GMB has said all along; Uber drivers are workers and entitled to breaks, holiday pay and minimum wage.
“Uber must now stop wasting time and money pursuing lost legal causes and do what’s right by the drivers who prop up its empire.
“GMB will now consult with our Uber driver members over their forthcoming compensation claim.”
Categories
Coronavirus: Technology
Categories
Coronavirus/ vitamin D
The editorial published in one of the world’s oldest and most prestigious medical periodicals is a devastating indictment of the policies of governments around the world in response to the pandemic.
— Read on www.wsws.org/en/articles/2021/02/08/pers-f08.html
Revealed: expected goals being used in football’s war against match-fixing
— Read on www.theguardian.com/football/2021/feb/13/expected-goals-being-used-in-football-war-against-match-fixing-data
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Queen’s Bench Division
Queen’s Bench Division
— Read on courttribunalfinder.service.gov.uk/courts/queens-bench-division
From 1 Feb 2021 due to COVID-19 the QB Judges Listing team and administrative Court Listing team can be contacted between 10am and 2pm, but their preferred method of contact is email.
QB Judges Listing 07511 405 467 or 07511 405 474
QBjudgeslistingoffice@justice.gov.U.K.
Administrative Court Listing 07512 405 468 or 07512 405 356
Listoffice@administrativecourtoffice.justice.gov.U.K.
In December 2019, medical diagnostic firm Abingdon Health was teetering on the brink, with losses of £1.5m. A year later, shares owned by its chief executive, Chris Yates (l), are worth £7.2m.
— Read on www.dailymail.co.uk/news/article-9229507/Taxpayers-foot-87m-bill-ministers-failing-company-Covid-contract-cancel-it.html
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Coronavirus: Astra/Oxford vaccine
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Coronavirus: Ivermectin
Dinah Rose QC is appearing for the Cayman government in a case concerning same-sex marriage.
— Read on www.lawgazette.co.uk/news/lawyers-rally-round-top-qc-under-fire-for-taking-cayman-case-/5107225.article
Master says media attention on claim against Labour party does not mean case should be treated differently.
— Read on www.lawgazette.co.uk/law/corbyn-bid-for-pre-action-disclosure-dismissed-as-fishing-by-court/5107221.article
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Coronavirus: Covid mistakes
Sir Geoffrey Vos set out his vision for an online civil justice system during a Law Society webinar this morning.
— Read on www.lawgazette.co.uk/news/master-of-the-rolls-to-create-online-funnel-for-civil-claims/5107194.article
Find out about the changes in practice brought in after COVID 19
— Read on www.judiciary.uk/announcements/senior-courts-costs-office-guide-the-2021-version-is-now-available/
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Brexit carnage
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Coronavirus: shutting schools
covid vaccine frequently asked questions when will i get covid vaccine coronavirus vaccine
— Read on www.carersuk.org/help-and-advice/coronavirus-covid-19/covid-vaccine-faqs
Reporting to the enhanced surveillance of COVID-19 cases in vaccinated individuals – GOV.UK
— Read on www.gov.uk/government/publications/covid-19-enhanced-surveillance-of-cases-in-vaccinated-individuals/reporting-to-the-enhanced-surveillance-of-covid-19-cases-in-vaccinated-individuals
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Brexit carnage: bananas
he WHO, the European Medicines Agency and the FDA in the US have all advised against extending the time between first and second doses
— Read on www.euronews.com/amp/2021/01/21/covid-vaccinations-second-shot-delays-not-recommended-by-global-health-chiefs
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Brexit carnage: cheese
another entity and a subsidiary of a larger corporation. An intermediate holding firm might be exempted from publishing financial
— Read on corporatefinanceinstitute.com/resources/knowledge/strategy/holding-company/
National firm brought action after new enquiries dropped by up to 50% following ‘scam solicitor’ comment.
— Read on www.lawgazette.co.uk/news/disgruntled-client-ordered-to-pay-25000-damages-for-libellous-review/5107081.article
How effective is a single vaccine dose against Covid-19?
— Read on www.bbc.com/future/article/20210114-covid-19-how-effective-is-a-single-vaccine-dose
In The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor [2021] EWHC 17 (TCC) District Judge Baldwin considered an application to substitute a defendant after the primary limitation period had expired. The judge, if anything, was critical of the defendant’s stance. The claimants’ applications were granted. “Whilst there is…
— Read on www.civillitigationbrief.com/2021/01/18/claimants-sued-the-wrong-non-existent-defendant-and-the-limitation-period-had-expired-dont-start-breaking-the-crockery-just-yet/
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Media: Image rights
Fact Sheet: Activity at the Wuhan Institute of Virology
— Read on www.state.gov/fact-sheet-activity-at-the-wuhan-institute-of-virology/
Norway said Covid-19 vaccines may be too risky for the very old and terminally ill, the most cautious statement yet from a European health authority as countries assess the real-world side effects of the first shots to gain approval.
— Read on www.bloomberg.com/news/articles/2021-01-15/norway-warns-of-vaccination-risks-for-sick-patients-over-80
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Ventilation (Harvard TH Chan)
Proper ventilation, filtration and humidity reduce the spread of pathogens like the new coronavirus.
— Read on www.nytimes.com/2020/03/04/opinion/coronavirus-buildings.html
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FTP Zarah Sultana
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Coronavirus: covid tongue
Judgment substantially allows the Financial Conduct Authority’s appeal and dismisses insurers’ appeals.
— Read on www.lawgazette.co.uk/news/supreme-court-backs-small-business-on-covid-loss-insurance/5107040.article
Experts say drafting flaws may have been ironed out by new ruling on enforceability of agreement.
— Read on www.lawgazette.co.uk/law/lawyers-hail-watershed-appeal-court-ruling-on-dbas/5107046.article
Press watchdog says claims were ‘significantly misleading’ as newspaper told to publish correction
— Read on amp.theguardian.com/media/2021/jan/14/daily-telegraph-rebuked-over-toby-youngs-herd-immunity-covid-column
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