Legal Watch Personal Injury March 2014 Issue 010
RTA/Liability It is almost inevitable that lorries on country lanes will encroach into the other carriageway. But what happens if there is a collision with a car travelling in the opposite
In This Issue:
direction? That was the issue in Gray v Gibson [Lawtel
• RTA/Liability
06/03/2014].
• Causation
The appellant/claimant had been driving her car along a
• Jackson/Mitchell - Expert Witnesses
single-carriageway country lane with a national speed limit.
• Procedure/Default judgment
The defendant had been driving a lorry in the opposite direction. The vehicles collided on a bend where the road was only sixteen-and-a-half feet wide: The lorry was eight-and-a-half feet wide and had inevitably encroached into the claimant’s lane. She issued proceedings against the defendant seeking damages. In a case management conference, the district judge indicated that his starting point for liability between the parties was “50:50”, until he saw what he made of them. At trial, he found that the claimant had been driving at 30mph and, having rejected the defendant’s assertion that he had been travelling at between 10 and 15 mph, that he had been driving at 25 mph. The judge found that at the time of the collision the claimant’s car had been one foot from the verge and the defendant’s lorry two feet from the verge, so that it had passed over two feet onto the claimant’s side of the road. He held that the defendant bore additional responsibility as
Events Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:
a lorry driver to be careful as he had insufficient visibility
MBIG Seminar 22.05.2014 - Wellcome Collection,
around the bend, and that he had been travelling too fast.
London, NW1
However, he also found that the claimant had been 40% contributorily negligent because she was travelling too fast around the bend. Allowing the claimant’s appeal, the Court of Appeal held that it was unfortunate that the judge had said that his starting point for liability was 50:50 to start with the proposition that both parties were negligent was wrong. However, 02
his additional comment that his position might change depending on what he made of the parties demonstrated that he had had in mind that the 50:50 position could alter. When he came to deliver his judgment, that was more or less what he had done, although the parties were left wondering whether he had been prepared to shift sufficiently from his starting position. The fact that the defendant was not credible could not help to decide the question whether the claimant had been negligent. The finding that the lorry had been travelling at 25 mph was generous to the defendant, but that fact alone was not dispositive of the case.
“A lorry driver crossing over the middle of the road owed a particular duty of care and was not to drive at a speed at which he could not stop within a short distance.� The judge had accepted the claimant’s evidence that she was familiar with the road and was used to meeting and passing large vehicles on it. He had not, however, considered whether she could have expected to meet a large lorry over two feet onto her side of the road. She could not be blamed for failing to foresee that eventuality. A lorry driver crossing over the middle of the road owed a particular duty of care and was not to drive at a speed at which he could not stop within a short distance. The claimant could not be criticised for failing to foresee that the driver of a large lorry would not take that obvious precaution, and she could not be described as having driven dangerously. The defendant was, accordingly, wholly liable for causing the accident. Gray v Gibson [Lawtel 06/03/2014]
03
Causation The case of Leigh v London Ambulance Service (2014)
she had a dissociative seizure resulting in her collapsing in
EWHC 286 (QB) looks at causation in a case where the
her seat. The issues were whether there was a causative link
usual ‘but for’ test could not be applied but where the
between the admitted negligence and the PTSD and/or the
defendant’s negligence was found to have made a ‘material
dissociative seizures.
contribution’ to the claimant’s condition.
Finding in favour of the claimant, the High Court judge held
The claimant dislocated her right kneecap as she went to
that the evidence of the claimant’s medical expert was to
sit down on a bus. She was trapped between the seats,
be preferred. There was no injury that was caused on the
was unable to move and in severe pain. An ambulance was
bus, merely circumstances that arose which later led to the
called but it did not arrive until 50 minutes after the injury.
onset of PTSD. There were innumerable variables in the
During that time, passengers held the claimant down to stop
circumstances that might give rise to the development of
her moving as instructed by the emergency operators. She
PTSD and in the people who were likely to suffer it. It was
felt trapped and helpless to end the pain. The defendant
impossible to predict on any scientific or mathematical basis
admitted that there was a negligent delay of 17 minutes in
the moment after which someone would go on to suffer it.
the attendance of the ambulance amounting to one third of
The instant case was a “cumulative cause” type case. The
the total period between the dislocation and the arrival of
court was unable to find on the balance of probabilities
the ambulance. It was accepted that the claimant suffered
that the claimant’s PTSD would have occurred in any
consequential psychiatric and psychological damage,
event before the negligent delay. The instant case was one
namely post-traumatic stress disorder (PTSD). It was also
where medical science could not establish the probability
accepted that from a date that was in issue, the claimant
that “but for” the negligent delay the PTSD would not have
had suffered dissociative seizures. The defendant’s medical
happened, but it had been established that the contribution
expert was of the opinion that the PTSD was probably
of the negligent failure was more than negligible. It made a
caused within about the first 15 minutes on the bus and
material contribution to the development of the claimant’s
therefore that the negligent delay had no part to play in
PTSD and therefore the claimant succeeded in establishing
its development. His evidence was that the claimant’s
the necessary causative link.
dissociative seizures occurred much later than the onset
claimant had a pre-existing vulnerability to such episodes.
“...the contribution of the negligent failure was more than negligible. It made a material contribution to the development of the claimant’s PTSD...”
The claimant’s evidence was that the seizures began soon
The claimant’s seizure during questioning was undoubtedly
of PTSD, were unconnected with it and were consequent upon other life stressors. The claimant’s medical expert stated that the PTSD developed as a consequence of one indivisible event on the bus where the whole 50 minutes was relevant and that there was no scientific method of splitting up the time to reach a conclusion as to how long would be needed to induce a PTSD condition. He was of the view that the dissociative seizures were part of, and an extension of, the flashbacks and the PTSD and that the
after the onset of her PTSD symptoms. During questioning,
04
genuine and a product of the pressure of the experience.
Although it was very much regretted, it helped the court gain a better understanding of her continuing psychiatric and psychological injury. Further it led to the defendant’s medical expert conceding that it was impossible for him to maintain his conclusion that all of the seizures were unrelated to the claimant’s PTSD. Where there were differences between the medical experts, the evidence of the claimant’s expert was preferred. The claimant’s evidence that her seizures began soon after the onset of her PTSD symptoms was accepted. The court was satisfied that the dissociative seizures were all part of the PTSD and consequent upon it and were not related to her other life stressors. The court had no hesitation in accepting that the injury fell within the JC Guidelines Chapter 4(B)(a), severe posttraumatic stress disorder. An appropriate award for damages for pain, suffering and loss of amenity was £60,000. Leigh v London Ambulance Service (2014) EWHC 286 (QB)
05
Jackson/Mitchell - Expert Witnesses The courts’ powers to control witness evidence in the
withheld the information in order to see if he could settle
post-Mitchell era and to take into account the impact of
the case in a proposed mediation on favourable terms
case management decisions on parties in other cases is
before he disclosed his difficulty and thereby undermined
illustrated in Clarke v Barclays Bank Plc (2014) EWHC 505
his negotiating position. That strategy failed when the
(Ch).
mediation was delayed. It was also clear that the other
The defendant was the claimant’s mortgagee and the claimant had brought the claim because he alleged that the defendant had sold the mortgaged property at a gross undervalue. A third party had been joined because the defendant claimed to have relied upon its advice. In accordance with the court’s directions, both parties had served expert evidence. However, on 3 May 2013, the claimant’s original expert informed the claimant that he was withdrawing from the case because he had retired. The claimant did not share that information with the other parties and allowed a trial window to be fixed. Over the coming months, mediation was arranged, but there were delays and it never took place. The claimant did not disclose the expert’s retirement until 27 November, by which time he had already instructed another expert. He served the new expert’s report on 20 December and was granted permission to rely upon it in February 2014. Allowing appeals by the defendant and the third party, the deputy High Court judge held that the court’s directions envisaged a sequential exchange of expert evidence, with the defendant and third party’s experts responding to the claimant’s expert evidence and the experts meeting and seeking to narrow the issues. In those circumstances, it had been wholly improper for the claimant to withhold the
parties would suffer serious prejudice as a result of the delay in the disclosure of his information if the claimant could rely on the new expert’s report. As directed, they had responded to the first expert’s report and the claimant had seen their experts’ positions and had the advantage of preparing his new expert’s reports in the light of it. If the new report was admitted, the defendant and third party would have to respond to that and the trial would have to be adjourned. Taking all those factors together, the claimant’s conduct amounted to a serious abuse of the process of the court. The deputy master who granted the claimant permission to rely upon the new expert’s report had failed to appreciate that. He had also failed to apply the important guidance given in Mitchell. The court had to strive to be a tough but wise, not an officious or pointlessly strict, disciplinarian.
“...if the new expert’s report was admitted, the trial would have to be vacated to the detriment of other court users”
information about the first expert’s withdrawal beyond a
It had been the claimant’s clear duty, under CPR PD 23A -
reasonable period. Once the claimant had decided that he
2.7 to apply for further directions very soon after 3 May 2013.
had to find a new expert to replace the first expert, he should
If he had done so, the court would have managed the time
have disclosed the problem to the court and the other
within which he had to identify and instruct a new expert.
side. The expert’s withdrawal was outside the claimant’s
As it was, however, if the new expert’s report was admitted,
control and there was little doubt that the court would have
the trial would have to be vacated to the detriment of other
been sympathetic to him if he had applied promptly for
court users. It was an important factor that the court should
directions. The inference was irresistible that the claimant
enforce procedural discipline in order to raise standards of
06
time-keeping in the courts. Although the expert evidence was critical to the claimant and he would be seriously prejudiced if he was denied permission to rely on the new report, the balance of justice as between the parties came down firmly in favour of refusing that permission. Although it might be little comfort to the claimant, the court would be prepared to give directions that the original expert’s report was in evidence at trial even though he might not attend or otherwise engage in the directions for the experts to cooperate in narrowing the issues. Clarke v Barclays Bank Plc (2014) EWHC 505 (Ch).
07
Procedure/Default Judgment Defendants should note the case of Samara v MBI Partners
Samara v MBI Partners UK Ltd and another (2014)
UK Ltd and another (2014) EWHC 563 (QB), which confirms
EWHC 563 (QB)
what many had already suspected: that when applying to set aside a default judgment, the defendant is now required to address the new approach to the overriding objective with its stress on the compliance with rules, orders and practice directions. The first defendant had failed to file a form of acknowledgment of service or a defence and at a hearing on 13 February 2012, judgment was entered against it. It was not until 21 May 2013 that an unsuccessful application was made to set aside that judgment. The first defendant appealed to a High Court judge.
“...the judge confirmed that the new regime has universal application...” Whilst confirming that even under the previous approach to such applications it would have failed, the judge held that the new regime has universal application and the need for promptness has even greater significance than previously. The master had considered three separate periods of delay on the part of the first defendant and it was appropriate that the judgment was entered.
Comment The significance of this ruling is that if defendants allow default judgments to be entered, any application to set aside the judgment will need to address the issues of why the judgment was entered (was the reason ‘trivial’?); how promptly the application was made; and then the prospects of successfully defending the claim if the judgment is set aside. Any delay in making such an application will weigh even more heavily against the defendant than was previously the case. 08
Other Publications If you would like to receive any of the below, please email indicating which you would like to receive. Monthly:
• Legal Watch: Property Risk & Coverage Quarterly:
• Legal Watch: Counter Fraud • Legal Watch: Health & Safety • Legal Watch: Marine • Legal Watch: Professional Indemnity • Legal Watch: Disease
Contact Us For more information please contact: Geoff Owen Learning & Development Consultant T: 01908 298 216 E: gro@greenwoods-solicitors.com
To unsubscribe from the Personal Injury newsletter please email: crm@greenwoods-solicitors.com
www.greenwoods-solicitors.co.uk
www.plexuslaw.co.uk
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.