the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Car vs Cyclist: Apportionment of liabilty

Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle  of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant. She had not been travelling very fast before the bend and she immediately slowed down to around 20 mph. That was the speed she was travelling when she passed the Claimant. Her evidence also was that she was as far over to the nearside of her lane as possible. As the car and and the bike passsed one another their wheels collided.  The Claimant lost control and fell.  She suffered multiple injuries, including a severe brain injury. She was left with a permanently impaired conscious level. The trial was liability only. The Claimant's case was that the Defendant had not kept a proper look out and had failed to properly assess the hazard presented by the Cliamant who was in the middle of the road stadning on her pedals. The Defendant maintained that as she approached and past the Claimant she was driving slowly and appropriately. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down and drive past her. The Claimant lost control of her bike and deviated unexpectedly onto the Defendant's side of the road so that contact occurred. She (the Defendant) was not responsible for that. Mrs Justic Cox held: 1. The courts must not fall into the trap of imposing a counsel of perfection on car drivers. 2. Nevertheless, cyclists are amongst the most vulnerable of road users. The Highway Code expressly says so and advises car drivers to give them plenty of room. 3. The Claimant was on her side of the road but only just. She was also standing on her pedals. The evidence suggested that she was grimacing or loooking uncomfortable. 4. In all the circumstances, a reasonably prudent driver would have appplied the brakes immediately and stopped to allow the Claimant to pass safely. The Defendant did not do that and primary liability was therefore established against her. 5. In terms of contributory negligence, the Claimant should not have been riding in the middle of the road. Her conduct in doing so materially contributed to the damage and was negligent. 6. In assessing apportionment: "The causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her...the appropriate apportionment of fault for the Claimant in this case is 25 per cent" 7. The Defendant had pleaded that failure to wear a helmet was contributorily negligent. It was not explored in evidence, however, and was not addressed in the Defendant's closing submissions. The judge said that there was no medical evidence adduced to show that failure to wear a helmet had made the injury worse. The allegation was therefore rejected.   Comment This strikes me as placing really quite an onerous burden on drivers. After all, the Claimant was in the middle of the road, on her pedals and approaching a bend. The Defendant was not speeding, she slowed down and she was as far over to the nearside as possible. To suggest that she ought to have stopped completely seems too high a requirement. The case is also worth a read because it involved live evidence from the parties' accident reconstruction experts. The Defendant's expert appears to have been so poor in evidence that, ultimately, counsel did not rely on him. The judge thought this was wise and was critical of his report and his oral evidence.   Sophie Mortimer

Accidents at sea: the limitation traps for claimants and defendants

The Athens Convention is notorious for catching out PI practitioners with its current two year limitation period* for accidents at sea. Indeed the few reported cases on it are mainly concerned with whether it is possible to extend time (Higham v Stena) or whether a cause of action exists outside the Convention (Norfolk v My Travel) – both resulted from a failure to issue in time. Judgment is shortly to be handed down in a case which may make life even more complicated for the personal injury practitioner. The issue is whether Article 16 of the Athens Convention extinguishes the cause of action or whether it bars the remedy. This fine distinction rarely troubles most personal injury practitioners but it has historically been a feature of our, and other, common law jurisdictions. In the UK we have, with exceptions, a system of limitation which stops a litigant accessing a remedy on the expiry of a period of time. Exceptions include claims relating to land and defective products. Other jurisdictions have a system of prescription which means that when time expires, the cause of action is extinguished. Why does this matter? Because under section 1(3) of the Civil Liability Contribution Act 1978 a party may claim a contribution from another tortfeasor who is liable for the same damage, except where the cause of action against that other tortfeasor has been extinguished. Where that is the case the contribution claim cannot proceed after the expiry of the time limit and there is no 2 year limitation period under section 10 of the Limitation Act 1980. In The Celtic Pioneer the judge heard arguments on the third party claim last week. The claimant was employed by the defendant and was seconded to another organisation. Whilst with that organisation she was injured on a boat trip. Her (former) solicitors missed the 2 year limitation period against the boat company and she sued the defendant (a strategic health authority). The defendant sought to bring in the carrier which successfully struck out the defendant’s claim on the basis that the cause of action was extinguished by Article 16 of the Athens Convention. The appeal was heard last week. The twist is that Article 16 is couched in the language of being a ‘Time-bar’ to an ‘action being brought’ which contrasts starkly with the equivalent provisions of the Warsaw and Montreal Conventions which refer to the cause of action being ‘extinguished’. The defendant argued that regardless of the language of a ‘time-bar’, Article 16 extinguishes the cause of action on the expiry of the 2 year limitation period. Claimants may miss the 2 year time limit but there is the potential that this judgment will catch out defendants wanting to bring third party proceedings and not realising that they must also bring their claims within 2 years of the accident. Indeed the same logic would apply to other international conventions given the force of law in the UK. Watch this space for the result... (John Ross QC and Ian Miller were counsel for the Appellant in The Celtic Pioneer).   *The limitation period may technically be suspended or interrupted up to a limit of 3 years under Article 16.3 or extended by agreement under Article 16.4F Photograph: Ian Britton FreeFoto.com

Marcel Beasley v Paul Alexander: back to basics with regards contributory negligence

The recent case of Marcel Beasley (a protected party by, his litigation friend Cadell Beasley) v Paul Alexander ([2012] EWHC 2197 (QB)) serves as a reminder of what is required to establish contributory negligence: not just fault on the part of the claimant but also the causative potency of the fault. On the afternoon of 22 May 2009 a serious collision occurred between a car driven by Mr Alexander and a motorcycle driven by Mr Beasley. Mr Alexander had been stuck in a line of traffic when he decided to abandon his journey and return home. He decided to turn into a farm track on the opposite side of the road. As he pulled out across the road towards the track his car was struck by a motorcycle ridden by Mr Beasley, who was attempting to overtake the line of cars in which Mr Alexander had been. Sir Raymond Jack found that Mr Alexander had been negligent in that he had switched his indicator on at the last minute, had turned suddenly and had turned without first looking properly in his mirror (at [13]). As to Mr Beasley’s contributory negligence, the Judge concluded that he was travelling at approximately 45 mph. The road was subject to the national speed limit of 60 mph, however Sir Raymond considered Mr Beasley was going too fast in the circumstances, although not by much: he would not have been criticised for travelling at 35 mph. Expert evidence indicated that, depending on Mr Beasley’s reaction time, it would have taken him 4.42 seconds or 4.92 seconds to stop at 45 mph, whereas at 35 mph it would have taken him 3.66 seconds or 4.16 seconds. In the event, Mr Beasley only had approximately 1.5 seconds and the extra time would not have allowed him to slow his speed significantly. Therefore, even if he had been travelling at a safe speed, he would not have avoided a serious accident (at [16]-[18]). This case demonstrates that even if it can be shown that a claimant was negligent, contributory negligence will fail unless that negligence can be shown to have caused the damage suffered.  

A Tale of Two Countries: applicable law in a claim against a foreign (French) insurer

Kira Middleton v Allianz IARD SA v Erika Lee Middleton [2012] EWHC 2287 (QB)     This matter arose out of a road traffic accident in France on 6 February 2002. The Claimant was a child born on 28 September 1999. The Defendant was an insurance company registered in France. The Third Party was the Claimant’s mother and became a party to the proceedings when a Part 20 (additional) claim was brought against her by the Defendant. The Claimant and the Third Party were British nationals. On 6 February 2002 they were in France; the Claimant lived there with her mother at the time (in the house of her grandmother near Bergerac, France).  A family friend (also a British national), was visiting the home of the Claimant’s grandmother. The friend was driving a Renault Espace vehicle and reversed at a time when the Claimant was behind her. The Claimant was struck and knocked to the ground by the reversing vehicle. The Claimant suffered a very significant brain injury, together with other injuries of the utmost seriousness. The Claimant was in a coma for 4 weeks. She was left with very significant care, medical, physiotherapy and accommodation/equipment needs. In the period since the accident the Claimant and her mother had returned to England where the Claimant was, by the time she issued proceedings, domiciled. It was common ground that the Claimant was entitled to bring proceedings directly against the French-registered insurer in the English Courts (being the Courts of the Claimant’s domicile) by virtue of section 3 of EU (Council) Regulation 44/2001 and the decision of the European Court of Justice in FBTO Schadeverzekeringen NV v Jack Odenbreit ECJ 13 December 2007 [2007] EUECJ C-463/06. The issue in the case concerned applicable law. The parties agreed that this issue was to be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The starting point was that French law – the lex loci delicti (the law of the place where the events constituting the tort occurred) – should be applied. However, the presumption that French law applied could be displaced where the Court was satisfied that it was, by reference to section 12 of the 1995 Act, “substantially more appropriate” to apply the law of another country in preference to the lex loci delicti.  The Claimant’s case was that French law, as the law of the place where the accident occurred, was applicable to the substantive issues in the claim and, by virtue of the same and the application of the French Loi Badinter, the liability of the tortfeasor (for which the Defendant was obliged to provide insurance indemnity) was strict. The effect of this would be that contribution from the Claimant’s mother would not be available. Unsurprisingly, the Third Party made common cause with the Claimant on this issue. The Defendant’s case was that it was substantially more appropriate that English law should be applied (in preference to French law). The question of the law applicable to the claim was tried as a preliminary issue by Griffith Williams J and a reserved judgment was handed down on 1 August 2012. The Claimant’s arguments prevailed and it was held that it was not substantially more appropriate to apply English law to the substantive issues in the case, including liability. Accordingly, French law applied (with the result that the Claimant would be able to rely on the Loi Badinter). The Judge applied the conventional three-stage process to the section 11/section 12 exercise in which stage one involves identifying the issue to which it is suggested the general (section 11) rule is not to be applied (for example, the issue of liability); stage two involves identifying the factors which connect the tort to the place where it happened (France) and the factors which connect the tort to the forum (England); and, stage three requires an assessment of the significance of these factors (as they connect the tort to each jurisdiction) to determine whether section 12 should be applied (see, Roerig v Valiant [2002] 1 WLR 2304 (CA)). The Claimant, her mother (the Third Party) and their wider family had a longstanding and significant connection with France (where they were living when the accident occurred) and, although they had moved back to England in the period since the accident, it is not surprising that their connection with France persuaded the Judge that it was not substantially more appropriate to apply English law. The significance of the decision lies in the Judge’s rejection of the following (somewhat novel) arguments advanced by the Defendant at trial. First, the Judge was not persuaded that the coincidence in the nationality of the Claimant, her Mother (Third Party) and tortfeasor should be given greater weight than the domicile of these parties – and the French insurer – at the time that the accident occurred (ie. they were all domiciled in France). It had been argued for the Defendant that nationality was a more stable feature than domicile (which could, as here, change over time) and so should be given proportionately greater weight. This argument did not succeed and represents, perhaps, a more or less subtle change of emphasis from the approach taken in Edmunds v Simmonds [2001] 1 WLR 1003 (QBD) (where the country of registration of the insurer was accorded less weight) and Harding v Wealands [2005] 1 WLR 1539 (CA) where, in the Court of Appeal (before the case was appealed on a different issue to the House of Lords), nationality of the tortfeasor was given considerable weight as a material factor. Second, the Judge was similarly unpersuaded that it was more appropriate for English law to be applied because, as a result of English authority (Harding Wealands [2007] 2 AC 1 (HL(E)), the Claimant’s damages would be assessed according to English law in any event because such assessment is governed by the law of the forum even where foreign law applies to the substantive issues (the Defendant had pointed out that, at odds with the conventional approach in continental legal systems, the English common law permitted different issues to be determined by the law of different jurisdictions and also recognised a distinction between the substantive issues (determined by the applicable law of the tort) and the procedural (determined by the law of the forum)). It was held, rejecting the Defendant’s argument, that the accident occurred in France where the Loi Badinter would apply and, by implication, the injured party (and insurer) would have a reasonable expectation that the Claimant would take advantage of this – a view that was consistent with interim payments and correspondence from the Defendant insurer which, contrary to its stance in the preliminary issue, had initially proceeded on the basis that the French Loi Badinter would apply (the Judge’s conclusions in this regard represent a departure from the approach taken in Dawson & Dawson v Broughton (2007) 151 Sol J 1167). This is, perhaps, one of the last cases where applicable law will be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Accidents which post-date 11 January 2009 are now dealt with by reference to the rather different considerations of the Rome II Regulation on applicable law (see, European Parliament and Council Regulation (864/2007) on the Law Applicable to Non-contractual Obligations).

How to admit, pay millions and get off Scott-free

    How do you get off Scott-free when you have made an admission of liability and paid millions in damages? The answer in AC and Others v Devon County Council [2012] EWHA 796 was not by withdrawing that admission but bringing a Part 20 Claim. Even then the result is rather curious but the case raises some interesting points of highways law and permission to appeal was granted this week. TR was the driver of a Landrover on a rural road in Devon which was edged with white lines. The width of the road between the white lines was about 4.6 metres. TR sought to overtake a Vauxhall Vectra at 45mph and his offside wheels went over the white lines at the side of the road. His case was that he got into a rut, steered to get out of it, swerved across the front of the Vectra, left the road and collided with trees. TR admitted liability and presumably settled the claimants’ claims but then brought Part 20 proceedings against the highway authority, Devon County Council. I limit myself to 4 issues. The first is whether the accident was caused by the Landrover entering the rut at the point of a pothole which was a dangerous defect, or whether it entered the rut at a point at which the road was not dangerous. The Council argued that the claimant had to prove whether the precise spot which caused the accident was dangerous (James v Preseli Pembrokeshire District Council [1993] P.I.Q.R. P114). The judge distinguished Preseli on the basis it dealt with pedestrians. She reasoned that cars moved (unlike pedestrians?) and so the relevant issue in a case involving motor vehicles was whether the stretch of road was dangerous and not the precise spot. The second issue relates to the section 58 defence. The Council had a 6 monthly inspection policy. The Code of Practice recommended a 1 monthly policy. The judge found that the Council had not carried out a risk assessment and justified its departure from the non-mandatory Code of Practice issued by the Department of Transport and therefore had not made out the statutory defence. It was not clear what the risk assessment would have identified, the road had always only had 6 monthly inspections and was notable for the absence of accidents. She did not really deal with the interesting submission that the Bolam test should have been applied when considering the reasonableness of the Council’s system of maintenance. The third issue also relates to the section 58 defence. The Claimant submitted that it was not open to the Council to say that if it had in fact taken all reasonable care, the accident would not have been prevented; it relied on dicta in Griffiths v Liverpool Corporation [1967] 1 QB 374. It was submitted on behalf of the Council that a causation defence was open to the Defendant under section 58; it relied on dicta in Rance v Essex County Council (unreported). Without giving reasons the judge appeared to prefer the dicta in Rance but she then found on the facts that a monthly inspection regime would have prevented the accident. The final issue relates to contributory negligence. The judge found that the Claimant was not negligent in crossing the white line marking the edge of the road when overtaking and he was not at fault in reacting in the way he did once he had driven onto the potholed and rutted area. Accordingly she did not make a finding of contributory negligence despite the fact that the Claimant had admitted liability in the main proceedings. Curiously the judge did not refer to the reasons why the Claimant admitted liability. The trial judge gave permission to appeal to the Court of Appeal on section 41, section 58 and contributory negligence. If the Court of Appeal allows the appeal on either sections 41 or 58 but upholds the judgment on contributory negligence then the Claimant will be asking big questions as to why he admitted liability to those who were injured. (Photo courtesy of FreeFoto.com)

Child Car Seats and Contribution Claims

In the latest of my run of articles on recent developments in the law of contributory negligence in personal injury cases, I have turned to the recent decision of the High Court in Emma Hughes (by Anne Marie Armstrong) v Estate of Dayne Joshua Williams, deceased (Defendant) and Louise Williams (Third Party) [2012] EWHC 1078 (QB).    It is tempting to say that “everyone knows” the case of Froom v Butcher (1976) QB 286. It is frequently the starting point in cases where a reduction in damages for contributory negligence is argued in road traffic accident cases where the injured party was not wearing a seatbelt. Lord Denning laid down a benchmark of a 25% reduction where the wearing of a seatbelt would have been likely to have prevented the material injury, and a 15% reduction where it was likely to have “made a considerable difference”. These figures may appear low to a generation exposed to the mantra of ‘clunk click every trip’. However in 1976 there was no legal obligation upon motorists to belt up (this was introduced in 1983 for front and 1991 for rear seat passengers).    On 18 September 2006 the Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations (SI 2006/1892) came into force. Thereafter, other than in very limited circumstances, this obliged all children under 12 years or under 135 centimetres to be supplied with an appropriate car seat when travelling in a motor vehicles. The type of car seat varies according to the size and weight of the child. The law, Government guidance, and the plethora of manufacturers’ ‘recommendations’ could easily be described as confusing for parents. I am sure that many parents thus get it wrong, buy the incorrect seat for their children or allow their own judgment of what their child needs to override that of others. However, should the law continue to follow Hughs, it is clear parents should do so at their peril.Blair J, held that the mother was negligent in using a booster child seat to restrain her three year old child on a car journey instead of a child seat. The court held that as the injuries sustained by the child in a car accident would have been largely avoided if the child seat had been used. Thus it was held appropriate to order that the mother contribute 25% of the damages. This decision can be seen as an extension of the benchmark rule laid down in Froom, as well as a willingness on behalf of the judge to hold that parents should adhere rigidly to the letter of the law in this area.

Ski, Riding and Now... Cycle Helmets

In my recurring theme as to contributory negligence and protective headwear (not to mention my citing of the most authoritative legal sources – this time “The Metro” 29 July 2011), there is a corpus of medical opinion which advises against making cycling helmets compulsory. This is on the grounds that such a law is likely to decrease cycling activity and that it is “inconclusive” whether helmets reduce injuries.   Certainly then, this is something that Clamant parties in cycling head injuries may wish to consider when faced with arguments as to contributory negligence.    

Slip Slidin' Away - Geary v JD Wetherspoon Plc

In November 1977 Paul Simon released his “Greatest Hits” album. It included two new tracks one of which was the smooth ballad, “Slip Slidin' Away”. Fifty years earlier in The Carlgarth [1927] P93 Scrutton L.J. had a different form of sliding in mind when he famously illustrated how the law has always distinguished between the duties owed by occupiers to lawful visitors to their premises and the more limited obligations that might be owed to trespassers by observing that: “When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way in which it is used.” In Geary v JD Wetherspoon plc [2011] All ER (D) 97 (Jun); [2011] EWHC 1506 (QB) Coulson J. was faced with precisely that situation. On the evening of 29 March 2007 the Claimant, Mrs Ruth Geary, had been drinking with some work colleagues at The Union Rooms, a pub in Newcastle City Centre, owned and operated by the Defendant, Wetherspoons. The premises had formerly been a gentleman’s club. One of the original features of the building, which had deliberately been left untouched, was a grand open staircase in the centre of the building with sweeping banisters on both sides. On her way out of the building with her colleagues, the Claimant hoisted herself onto the left banister with the intention of sliding down it. Unfortunately she fell backwards and landed on the marble floor some 4 metres below. She sustained a fracture to her spine resulting in tetraplegia. The essential issue at trial was whether there was a voluntary assumption of an obvious and inherent risk by the Claimant in circumstances which would negate any liability on the part of the Defendant. The Claimant submitted that her own conduct, whilst plainly relevant to the issue of contributory negligence, could not amount to a defence in law. The Defendant argued that the Claimant had voluntarily assumed the obvious risk inherent in sliding down open banisters which, on one side, had a long drop to the marble floor below. As a result the Defendant argued that it could have no liability in law to the Claimant. The claim failed. The judge held the Claimant had deliberately taken the risk that she might fall. She had not intended to fall but due to a momentary misjudgment she did. The principle of voluntary assumption of risk was fatal to her claim. The Claimant had freely chosen to do something which she had known to be dangerous. She was therefore the author of her own misfortune. The Defendant owed no duty to protect her from such an obvious and inherent risk. This case serves as a useful (and many might say timely) reminder that the mere fact that there is a foreseeable (and foreseen) risk of injury does not, of itself, create a duty of care particularly in circumstances where the duty contended for is to protect the Claimant from his or her own foolishness. As Coulson J. pointed out in his judgment: “It is foreseeable that a man walking towards a cliff will cause himself serious injury, but there is no liability in law on the passer-by who does not point that out”.  

Artists and events companies beware

The High Court today found a Liverpool events company to blame for the Dreamspace tragedy. Foskett J has found Brouhaha International Limited 55% to blame for the incident which saw a large, tent like, inflatable art structure designed by artist Maurice Agis take off in July 2006, killing 2 and injurying many more. The finding was made in contribution proceedings brought by Chester-le-Street District Council, the apportionment of blame being as between those two parties only. Had the now deceased artist, Maurice Agis, been a party to the proceedings it is likely he would have carried most of the blame. However, he was uninsured and had no assets.

A Riding Hat? Not on Our Nelly!

On 23 February of this year I wrote an article on the Piblawg regarding Mayor Boris Johnson’s distain for ski helmets and considered the implications for claimants not wearing safety equipment which is entirely optional and contributory negligence (see: A Ski Helmet? – Not on your Nelly).   Well, some similar controversy has been sparked from an unlikely source – the launch image for the Royal Windsor Horse Show. This shows a picture of our gracious monarch atop a black pony flanked by her youngest grandchildren, similarly mounted. Whilst the youngest Royals have the benefit of black velvet riding hats, the Queen (who let’s face it is internationally renowned for her headwear, both bejewelled and otherwise) has decided upon a rather fetching floral headscarf.   More...