the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

BBC Expose of 'Crash for Cash' Ring

For some light relief (this is being posted on a Friday afternoon after all!) any practitioner involved in PI cases where fraud is alleged could be advised as to look no further than the detailed article published on the BBC Wales’ website about a successful prosecution of a so-called ‘crash for cash’ ring, in this case an extended family. This would appear to be something of an extreme case, the publicisation of which will no doubt be pleasing to insurance companies seeking to highlight what they suggest is the prevalence of such behaviour, albeit on a less industrial scale.   The modus operandi of the Yandell family from south Wales was to submit claims for entirely fraudulent road traffic accidents replete with bogus repair invoices, hire car charge invoices and other bogus evidence as well as various friends and relatives roped in as phantom passengers. Police suspected they made in excess of £2 million over the years.   A particularly (though soberly unsurprising for anyone concerned with such claims, such as the author) runs:   “ ‘Originally they'd tried a couple of collisions to get a bit of extra cash,’ said DC Jon Parkinson. ‘They realised there was a lot of money to be made.’   The Yandells also realised that insurance companies would soon become suspicious if the same names kept cropping up on claims.To get around this, they began roping in friends and other family members. The more names and addresses involved, the less risk there was of insurance company fraud investigators smelling a rat.   It worked something like this: 1) The Yandells and their associates would invent car accidents in which one party would pose as the non-fault driver 2) The at-fault vehicle would either have high mileage or be mechanically problematic. No loss as it was worth more as a write-off and money could be made by removing parts, headlamps, gearboxes 3) The non-fault party then submits an insurance claim for damage to their car, personal injury, courtesy car, crash repairs and so on 4) The Yandells would submit fraudulent courtesy car and repair invoices to insurers 5) Other family members and friends or friends-of-friends would then be roped into the deal. They agreed to lie and say they were in the car at the time 6) A flurry of cheques follow ranging from £10,000 to £40,000 per accident - new cars, personal injury payouts, courtesy car charges and bogus repair bills   But the accident had never happened. So, before any inspectors arrived from insurance companies, the Yandells had to make sure the cars looked suitably smashed up.   The gang would damage cars with hammers, or drive cars into one another ... ”   The extensive article includes photographs and excerpts from BBC Wales' Week In Week Out current affairs programme, including footage of cars being deliberately damaged to bolster claims – to repeat, it’s really worth a read/watch!   The good news is that the report states that the Yandells have been stopped. Prosecutions were buoyed by the availability of CCTV footage as well as intelligence gleaned from social media. The BBC suggested that in total over the past five years some 83 people have been found guilty in the criminal courts for this fraud, specifically: 81 on conspiracy to defraud and two for theft. It is said that they received sentences ranging from six years in jail to suspended prison terms. Next week the final five people involved are due to be sentenced.   The article is available at http://www.bbc.co.uk/news/uk-wales-35357195.  

Schedules, Counter Schedules and the Gadget Generation

    No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a year or just under £300 per year per household on technology for their children.   This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.   http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx   We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.   Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.   The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.   It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could not even match their “techie tots” when it comes to knowing their way around the latest gadgets.   Perhaps the Counters Schedulers have a point?

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.  

Personal injuries at the first modern Olympic Games

As the London Olympics draws to a close it is interesting to think about how our forefathers lived at the time of the first modern Olympic Games in 1896: what personal injuries they suffered and what claims they made.   Cars had just been invented, but few people could afford them, so there would have been very few car accidents. By interesting coincidence, the first fatal car accident is believed to have occurred in the same year as the first modern Olympics. The unfortunate victim was Bridget Driscoll who, on 17 August 1896, was struck down by a car giving demonstration rides in the grounds of the Crystal Palace in south London. Her death was subject to an inquest, during which the coroner stated that he “hoped such a thing would never happen again”.   Whilst the number of car accident injuries were of a lesser order than they are today, roads appeared to be just as dangerous. Research carried out by Aviva shows that entries such as “Solicitor, Weston Super Mare, thrown from carriage” were frequent in the records of its accident subsidiaries.    Personal accident insurance in this period covered not just negligence of third parties but also compensated for the insured’s own lack of forethought. Aviva’s sports-related entries may well provide a cautionary note to those of us inspired to take up Olympic sports now that the Games are done.   When riding  ·         Maltster, Warwick, struck eye with own whip when riding - £156 (Railway Passengers, 1881)   When shooting  ·         Farmer, Bardon, companion’s gun went off - shot in both legs - £105 (Railway Passengers, 1881)   At football  ·         Coachbuilder, Blackburn, fall over football - £30 (Railway Passengers, 1878)   At lawn tennis ·         Clergyman, York, fall over a dog while playing lawn tennis - £13 10s (Railway Passengers, 1878)                         Other assorted sports ·         Stationer, Chorlton, fall over croquet hoop - £33 (Railway Passengers, 1870)   ·         Vicar, Salop, fall when playing leap frog - £120 (Railway Passengers, 1875)                                 ·         Ironmaster, Penn, slipped when fencing - £75 (Railway Passengers, 1886)    

Clever Cars

Cars are getting more intelligent. Mine tells me when to change gear, puts its own windscreen wipers on and tells me off by beeping if I am late putting on my seatbelt. But modern cars are set to make mine very much look like the dunce of the class.   A leading German car maker is already advertising that its latest technology allows its cars to sense the presence of other cars and take some action quicker than its driver is able to. I have been told by an off-the-record source that such technology is likely to be made available to not-so-leading car makers in the relatively recent future and it is thought likely to be installed in almost all new vehicles in a few years.   Will this render road traffic accidents and their associated personal injuries a thing of the past? Well the answer to that is obviously “no”, however the presence of such technology is likely to dramatically alter the way that RTA disputes are conducted. If it can be shown that technology installed in a car will automatically brake the car to ensure it does not come into collision with a vehicle in front – will this assist the driver who suggests he or she has fallen victim to a “slam on” accident?   There are of course many questions which the advent of the widespread use of such wizardry will bring. It is unlikely to be too much longer before it would be wise for anyone litigating a case involving a motor vehicle to make enquiries as to the existence of such technology.    

Crossing Centre White Lines & the Balance of Probability

CASE REPORT: -       Scott v Symons (2012) CA (Civ Div) 19/06/2012     At first instance, a motorcyclist was held responsible for a road traffic accident by riding his motorcycle onto the wrong side of the road. The motorcyclist himself had been injured by a car and gave the sole oral testimony at the trial. He contended he had been driving towards the middle of the road to give himself maximum visibility but conceded that his right hand might have crossed over the centre line. He always maintained however that he had remained on the correct side of the road and the collision must have been caused by the driver of the car wandering into his lane. There was a witness who did not attend trial. However his witness statement suggested the motorcyclist was on the wrong side of the road as he saw the collision in his rear view mirror.   The judge found that the motorcyclist was a frank, honest and credible witness, but that his evidence was a matter of reconstruction rather than recollection. It was held that the hearsay testimony of the witness that the other motorcar involved in the collision was on the correct side of the road very shortly prior to the accident was persuasive. He also took account of the motorcyclist's admission that his right hand had indeed strayed over the centre line. The judge concluded that, on the balance of probabilities, it was most likely that the collision had been caused by the motorbike crossing onto the wrong side of the road.   The motorcyclist appealed. The Court of Appeal (Lord Neuberger MR, Moses and Rimer LJJ) in an ex tempore judgment held that the trial judge had been entitled on the evidence to find upon the witness’s evidence that shortly before the accident the driver of the motorcar involved in the collision was on the correct side of the road and if he had then strayed across the centre line, it would have had to have happened quickly and without reason. The Court also held that the court below was entitled to give weight to the motorcyclist’s frank admission that he may have slightly strayed into the incoming lane. Both factors, it was held, were sufficient to make a finding on the balance of probabilities that the motorcyclist was to blame for the accident. The appeal was dismissed accordingly.    

What a difference 5mph can make...

   Motorists have never been able to rely solely upon a stated speed limit as justification to drive at a certain speed. This has recently been restated, having only lately been at the heart of another judgment of the High Court in Rehman v The Estate of George Brady & Anor [2012] EWHC78 (QB).   In an ex tempore judgment in the case of McCarthy & Anor v (1) Grimes (2) MIB (2012) (unreported, QBD 17 May 2012), Nigel Wilkinson QC (sitting as a Deputy High Court Judge) gave judgement for a claimant pedestrian in her claim against the defendant driver.   The accident took place on a busy residential road, which like many such roads, was lined either side with parked cars. The speed limit was 30mph and the evidence suggested that the Defendant was driving at a speed around or slightly in excess of this limit.   The Court held the Defendant was driving in excess of 30mph and that this speed was inappropriate. It was held that if the driver had been driving at 25 miles per hour, which was a proper speed for the residential area, the impact on striking the claimant would have been significantly less. This was premised on a number of simple calculations of reaction times and stopping distances, which in the circumstances were held to show that the Defendant could had avoided the accident or mitigated its consequences if she drove at 25mph.   McCarthy draws a much tighter line between a motorist’s speed which was to be considered to be excessive and thus negligent and one that was not, as was held in Rehman (where the Sharp J held that the defendant driver should have been travelling at 15mph rather than around 30mp). Certainly it serves as a warning for motorists to consider reducing their speeds in built-up areas as it would appear that even a reduction of a few miles an hour may make all the difference to a (potential) accident and/or subsequent litigation.    

A catastrophic getaway

  Mr O’Brien and his nephew Mr Joyce must be amongst the most incompetent thieves around. They stole a ladder from the front garden of a house and put it into the back of the van but could not close the door. Mr O’Brien drove the van off to make a speedy getaway whilst Mr Joyce hung onto the back of the van, standing on a footplate with the ladder under or over his right arm. He was holding onto the door or roof whilst a door was flapping around. The van lurched around a bend without reducing speed making Mr Joyce yet more unstable. Finally, on another bend he lost his grip, fell and suffered a severe head injury. Mr O’Brien seemed more concerned about trying to hide the ladders than helping his nephew. His excuses for the accident were inconsistent, ridiculous and not worthy of a schoolboy. He said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or ladders, that his nephew clambered through the back of the vehicle to secure the doors which had come open, that he was riding on the footplate as a ‘joke’ and that his nephew had got out of the van to secure the doors and was not on it at the material time. The judge commented that it was no surprise that nobody wished to call him as a witness or rely upon his evidence. The case was Joyce v Tradex Insurance Company Limited [2012] EWHC 1324;  the issue was whether Mr Joyce could recover damages for personal injury from Mr O’Brien when the claimant was injured whilst both were engaged in a joint criminal enterprise.   Cooke J found that Mr Joyce’s injuries were caused by the speed of the vehicle (essential to the getaway) and his position on the back of the vehicle (holding the ladders and the van whilst standing on the footplate). What Mr Joyce had done was so unusual as to be as causative of his injuries as Mr O’Brien’s driving. Accordingly the claim failed on causation. The claim also failed as a matter of general public policy: a participant in a joint enterprise theft which involves a speedy getaway in a van with a participant driving and the other clinging dangerously to the stolen items and the van cannot recover for injuries sustained in the course of that enterprise. The driver could not owe a duty to his co-conspirator and it was not possible to set a standard of care. What’s more, risk and danger were inherent in the enterprise. Accordingly Mr Joyce’s own criminal conduct precluded him from recovering. (Image Courtesy of Freefoto.com)  

Why did the pedestrian cross the road?

Motor insurers are keen to keep up the pressure up on the courts to exonerate drivers or at least to ramp up the findings of contributory negligence in cases where pedestrian claimants wrongly walk into the road in front of approaching vehicles.  However, three recent decisions show the pace of change, if any, to be glacial.   First, there was a set back for motor insurers in Smith v Chief Constable of Nottinghamshire [2012] EWCA Civ 161.  The trial judge found the Claimant 75% to blame for walking out in front of an approaching police car on an emergency call with its flashing lights and siren activated.  The Court of Appeal substituted a decision which fixed her with just one third of the blame.  Although an earlier CA decision (Keyse v Commissioner of Met Police, 2001) had stated that “pedestrians can usually be expected to follow the relevant advice in the Highways Code” – ie to stay off the road when police cars on emergency calls are approaching – here the police driver was held to be travelling much too fast in a lively city centre on a Friday night, surrounded by revellers.    Second, there was the surprising first-instance High Court decision in Tavares v Hudson-Rotin (2012) Lawtel 13.3.12.  The Claimant had crossed a single track road in a busy shopping area into the path of the Defendant, whose vehicle struck him.  The Defendant driver had been travelling at 28-30 mph, whereas there was a 20 mph speed limit and a safe maximum would have been 15 mph.  However, the Claimant failed to look out and should have waited to cross the road.  The judge awarded just 15% contributory negligence against him.   Finally, in Rehill v Rider Holdings Ltd [2012] EWCA Civ 628 the Claimant pedestrian disregarded the “red man” light at a pedestrian crossing and walked out from the pavement in front of an approaching bus which had the right of way and was pulling off at slow speed.  Nevertheless, the Court of Appeal upheld trial judge in finding the driver negligent in failing to brake sooner to avoid the Claimant being crushed under the front wheel.  The Defendant argued for contributory negligence of 80%, the trial judge awarded it at a third and the Court of Appeal settled on 50%.   In two of these cases a guiding principle which weighed heavily and which still seems to govern these cases was the comment of Hale LJ in Eagle v Chambers (2003):   “A car can do so much more damage to a person than a person can usually do to a car. …The potential “destructive disparity” between the parties can readily be taken into account as an aspect of blameworthiness. …   It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle.”    

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)