R “HSE” v University of Northumbria at Newcastle26 January 2017
R “HSE” v University of Northumbria at Newcastle
(Newcastle Crown Court: HHJ Bindloss)
25 January 2017
Peter James, Partner at Plexus Law represented Northumbria University in a Health and Safety prosecution after two students overdosed on caffeine during experiment.
The University was charged with and pleaded guilty to an offence pursuant to Section 3(1) of the 1974 Health and Safety at Work etc. Act.
A practical exercise was being undertaken to assess the effects of caffeine on the body during strenuous exercise. This practical had taken place once a year since 2009 without incident.
Two students volunteered to take the caffeine in a soluble form and undertake the exercise. The students had received a lecture, which identified the risk of caffeine overdose prior to the exercise
When they attended the lab, a laboratory practical guide was provided which identified the amount of caffeine to be ingested should equal 4mg per kilo of body mass. To assist the second year students, 2 technicians attended the practical session, one educated to degree level.
Instead of calculating 4mgs x 76.6 (one of the students weight) giving 306.4mgs (0.306 of a gram), the calculation was undertaken as .4g x 76.6 giving 30.68gs and weighed out on the scales in grams. A similar mathematical error was made in calculating the amount of caffeine to be ingested by the other student. While the risk had been identified and all previous calculations undertaken correctly, the practical guide did not spell out the exact calculation required, the maximum dose or any inbuilt checks. There was therefore a risk of miscalculation.
Counsel for the HSE submitted that a £3.6 million starting point based on the University being a “very large “organisation and with a “high” culpability, “level A” harm and “high” category 1 “likelihood” of harm.
Following submissions from Peter Smith of Deans Court Chambers instructed on behalf of the University, the learned Judge found the University could not be classed as a very large organisation although its income significantly exceeded £50 Million. Further, that although finding “high” culpability and level A harm, accepted that the “likelihood” of the harm occurring was “medium”.
In the result, the learned Judge arrived at a starting point of £900,000 (range £550,000 to 2,900,000) reducing it to £600,000 given the University’s charitable status, public benefit and mitigation. A further reduction was made for a guilty plea and a £400,000 fine was imposed.
The HSE’s own expert Dr Poole no doubt influenced the issue on the “likelihood” of harm expressing part of his opinion thus:
“If the students and supervising technicians have a GCSE qualification in mathematics, they should be able to do this calculation as it required no more than simple multiplication. I am surprised that neither the students nor the technicians could do this calculation without the need for additional training”.
The “likelihood” of harm was argued as low on the University’s behalf.
Stewart v Kelly (2016)31 October 2016
QBD (Blake J) 31/10/2016
Civil Evidence: Personal Injury – Damages
Case Management Directions: Delay: Measure of damages: Pre-trial evidence: Road traffic accidents: Video evidence
A claimant in a personal injury case had had no principled reason to object to the admission of video surveillance evidence served by the defendant as part of a dispute over damages. The court permitted the evidence to be adduced, and the loss of the trial date caused by the claimant’s objection would not count against the defendant.
The defendant in a personal injury claim following a road traffic accident applied for permission to adduce further surveillance evidence of the claimant.
The defendant had admitted liability for the accident, but damages were disputed. The claimant alleged that he had suffered neck and back pain. Between 2013 and 2015 the defendant had commissioned video surveillance of the claimant in order to gauge the extent of his injuries. A trial date had been fixed for November 2016. In accordance with a master’s directions, the claimant served a final witness statement in May 2016, which set out further particulars about his pain and his inability to do housework, bathe his children, and wash his car. The defendant then commissioned further surveillance. In August 2016 it served seven hours of unedited surveillance footage on the claimant, along with witness statements from the takers of the footage, and invited him to agree to its introduction and assessment by an expert. The claimant declined and objected to the evidence being adduced. The defendant submitted the instant application. It was agreed that the footage was authentic, had not been unlawfully obtained, and was on its face relevant to the issues at trial.
The claimant submitted that there had been principled reasons for objecting to the evidence, namely that the application should have been made sooner, that it had not been prefigured in the case management directions, that it had not been necessary or appropriate for the defendant to wait until the claimant’s final witness statement to respond with further evidence, and that serving the evidence in August had been too late to save the trial date given the lines of enquiry required to respond to it.
HELD: The central issue was whether the claimant had had a good reason in principle to object to the admission of the surveillance evidence when it was served in August. The applicable principles regarding Plexus Law is a trading name of Plexus Law Limited, a limited company incorporated in England & Wales. Reg No: 09641584. Registered office: Joseph’s Well, Hanover Walk, Leeds, LS3 1AB. Plexus Law Limited is authorised and regulated by the SRA (SRA No. 626521). Lists of Directors and non-directors who are designated ‘partner’ or ‘director’ are available at the registered office. Plexus Law Limited is a Multi-national practice regulated by The Law Society of Scotland (LS No.51119) whose professional rules can be accessed at www.lawscot.org.uk/rules-and-guidance.) ambush and the entitlement to wait until a claimant had “nailed his colours to the mast” were those set out in Hayden v Maidstone and Tunbridge Wells NHS Trust  EWHC 1121 (QB),  3 Costs L.R. 547, Hayden applied. The issue was when the claimant had “nailed his colours to the mast”: the court agreed with the defendant that it had been in the final witness statement, which set out with particularity his social functioning, including his ability to do tasks with his house, his car and his children. A significant factor to consider was when it had been reasonable for the defendant to commission the further evidence: it had to allow sufficient time for the claimant to be able to respond. Applying the Hayden principles, the court was satisfied that: the claimant had “nailed his colours to the mast” in the final witness statement; the defendant had had a duty to act quickly in deciding to commission further surveillance evidence; the addition of the July surveillance material had not been a tactic aimed at disguising previous delay, as it had been reasonable to update the older video evidence; the delay between receiving the evidence in July and serving it on the claimant in August had had no material impact on the claimant’s capacity to respond within the three-month pre-trial period. There had been no ambush or undue delay. A three-month period for responding to the evidence and having it evaluated by a medical expert was not unduly restrictive or inappropriate in the circumstances. There had been no good objection in principle to the admissibility of the evidence and the claimant should have worked promptly to agree new directions to enable the trial date to be kept. The mechanics of amending the costs budget were consequential to the issue of principle, and not an issue of principle in itself. There had been no culpable delay on the defendant’s part in pursuing the instant application. The trial date could no longer be met, but that was the result of the claimant having objected without a principled reason. The delay in the timetable would not count against the defendant.
Lorien Helm, Partner
For the claimant: Colin Mendoza
For the defendant: James Pretsell
Capita (Banstead 2011) Ltd and another v RFIB Group Ltd  EWCA Civ 13107 January 2016
Plexus Law, instructing Adam Tolley QC, successfully acted for Capita in an appeal against the first instance / decision of Mr Justice Popplewell,  EWHC 3977 (Comm). In a judgment handed down on 21 December 2015, the Court of Appeal held by a majority that pension consultants did not owe a continuing duty to correct previous acts of negligence in relation to ineffective revisions to a pension scheme.
In a decision likely to be of general interest to professional negligence practitioners, Lord Justice Longmore and Mr Justice Henderson held that the decision of the Court of Appeal in Bell v Peter Browne & Co  2 QB 495 was to be followed in preference to the decision of the High Court in Midland Bank Trust Co v Hett Stubbs & Kemp  Ch 384. The Court ruled that the obtaining and receiving of advice after a negligent mistake has been made does not give rise to an obligation to correct the mistake or to a fresh cause of action every day after the mistake has been made.
As a result, under a contractual indemnity in a share purchase agreement, Capita will be entitled to recover from RFIB Group a larger proportion of a settlement of a professional negligence claim.