Legal Watch: Personal Injury 17th July 2014 Issue: 027
RTA Two cases this week illustrate the circumstances in which the Court of Appeal will interfere with a judge’s decision on the facts. In the case of Gray v Bothwright [Lawtel 10/07/2014] the appellant/claimant had been driving towards a complicated junction which had 11 traffic lights controlling the flow of traffic. He was familiar with the junction and turned right when the lights turned green in his favour. He knew that the other lights would be red at that time and therefore did not check to see whether any cars were approaching. In fact the respondent/defendant had driven through a red light and a collision occurred. The claimant suffered neck and back injuries and brought proceedings alleging that the accident had been caused by the defendant’s negligent driving. The district judge found that although the defendant had driven through a red light, he had not been travelling significantly in excess of 30mph and the accident had been solely caused by the claimant’s negligence in failing to check for vehicles when turning right. He relied on Whittle (2006) and found that the occurrence of the accident was not within the scope of the duty of care which the defendant breached when acting negligently. In case he was wrong, the judge assessed general damages. The claimant’s first appeal was dismissed by a circuit judge. Allowing the claimant’s further appeal in part, the Court of Appeal held that the claimant had made a positive decision not to check for traffic when he turned right because he inferred that the traffic light would be red and he assessed that no vehicles would be approaching. His decision to cross the carriageway without looking was an act of sheer folly. It was not sensible to assume without checking that no car was approaching. He had been negligent in failing to check for oncoming traffic. However, his actions had not been the sole cause of the accident. The defendant should not have been where he was at the moment of impact. The instant case differed from Whittle as the whole purpose of the 11 traffic
In This Issue:
• RTA • Fraud • Proposals to reform fatal accident inquiries in Scotland
lights was to ensure a regular flow of an appropriate number
the claimant’s. He noted that the CCTV footage showed
of vehicles through the junction at each stage. By entering
her standing, not close to the front of the bus, talking to
the junction when he did, the defendant created the danger
a friend. It also showed the red vehicle passing the bus in
which the lights were designed to prevent. The damage
the nearside lane and starting to move across to the offside
that the claimant sustained was within the scope of the
lane in front of it. Time stamps on the stills showed a four-
duty which the defendant owed to other road users when
second gap between the red vehicle starting to cross the
he crossed the red light. He had been found to have been
white lines dividing the lanes and the bus coming to a stop.
travelling at just over 30mph but he should have slowed
The judge concluded that the red vehicle had caused the
down when he saw the claimant in his path. The onus was
driver to brake and that his braking had not been sharp
on the defendant to be particularly careful when driving
or dramatic. He rejected the claimant’s argument that the
through the junction as he should not have been there at
driver should have braked either two or four seconds earlier
that time. The defendant was at fault in failing to slow down
than he did, concluding that the driver of the red vehicle was
as he approached the junction. Both parties had driven
solely responsible for the accident.
badly and liability was apportioned 50:50. The claimant’s appeal in relation to quantum was dismissed. The second case is Christian v South East London & Kent Bus Co (2014) EWCA Civ 944. This case also shows the increasing importance of CCTV footage as evidence to assist in determining liability. (On this point see also Cridland (Protected Party) v Stagecoach (South) Ltd – Legal Watch: Personal Injury 4 29/01/2014)
Rejecting the claimant’s appeal, the Court of Appeal held that an appellate court had to exercise the greatest restraint before overturning findings of fact made at first instance. There was no principled basis on which the instant court could interfere with the judge’s careful findings of fact. The judge had had the advantage of hearing and assessing the driver’s evidence and he had been assisted by the CCTV footage and stills. He had been in a far better position to assess the evidence than was the instant court. His factual
The appellant/claimant had been a passenger on one of
conclusions could not be said to be so obviously wrong or
the respondent/defendant’s buses. The accident occurred
so outside the band of reasonable conclusions open to him
when the bus was travelling in the offside lane of a two-lane
that his judgment should be set aside. Nor could it be said
road, approaching a queue of standing traffic. The claimant
that he had taken irrelevant facts into account or wrongly
alleged that when the driver got close to the standing traffic,
applied the law. The critical events had taken place over
he performed a sudden emergency stop instead of slowing
a period of some four to five seconds. The photographic
gradually. The claimant, who had been standing close to
evidence did not demonstrate that the driver had been
the front of the bus, had been thrown forward and another
negligent in not braking sooner and his evidence would
passenger had fallen on her. As a result, she sustained a back
have been key in informing the judge’s decision. The judge
injury. At trial, the central question was whether the driver
had been entitled to conclude that although, with hindsight,
had driven negligently. The judge heard oral evidence from
the driver might have taken another course, he was not
the claimant and defendant and he viewed CCTV footage
to be judged by too critical a standard. He had acted on
and stills taken by cameras on board the bus. The driver
the spur of the moment by taking evasive action. It would
denied that he had approached the queue of traffic without
be wrong for the instant court to interfere with the judge’s
slowing down. He claimed that a red vehicle travelling in the
findings of fact, even if a different judge might have come to
nearside lane had tried to cut in front of him, forcing him
a different view.
to pull out towards the central reservation and perform an emergency braking manoeuvre. The judge found that the driver had not been negligent, preferring his evidence over
Fraud Liverpool Victoria v Thumber [Lawtel 16/07/2014] sees
had been emphasised in previous cases. Twelve months’
another successful application by an insurer to commit a
imprisonment was the appropriate sanction.
fraudulent claimant for contempt of court. The claimant had alleged that, while driving his Audi, valued at £6,000, he had been hit by a BMW; that his car was written off; that he had suffered whiplash and had incurred car hire fees of over £130,000. The driver of the BMW took no part in the claim but his insurer, the applicant, was joined as a second defendant and served a defence alleging fraud. On the trial date the claimant discontinued his claim and was ordered to pay costs on an indemnity basis. The second defendant insurer applied for the claimant’s committal but he obtained an adjournment on the basis that he had only had one week’s notice of the hearing and wanted to instruct legal representatives. He was told that the committal hearing would only be further adjourned if the court was provided with proper medical evidence of him being seriously ill. A doctor’s certificate was sent to the court ten days before the instant hearing stating that the claimant was suffering from a depressive episode and was unfit for work. His brother told the court that the claimant’s mental health had seriously deteriorated and that he might be hospitalised. The High Court judge hearing the application held that if the claimant was unfit to attend court then his doctor should have stated that on the certificate. The claimant might have been depressed, but that was not a reason for not attending court and no further adjournment would be granted. The second defendant’s evidence showed that the damage to the cars was incompatible with the collision as alleged and that the claimant and the BMW driver were linked by a third-party. There was powerful evidence of fraud and dishonesty and the excessive amount claimed for car hire had been the claimant’s undoing. It was plainly a fraudulent claim involving false witness statements and if the claimant had proceeded to trial he would have sought to gain money by perjury. Giving evidence dishonestly was plainly a contempt of court and the seriousness of insurance fraud
Proposals to reform fatal accident inquiries in Scotland From within Plexus Scotland A Scottish Government consultation on proposals to reform
made within two months of the Procurator Fiscal receiving
and modernise the law on fatal accident inquiries (FAIs) has
instructions to hold it. Further proposals include submission
opened. The proposals largely follow the recommendations
of written statements, pre-hearing expert meetings and that
in Lord Cullen’s 2009 report.
Edinburgh and Glasgow’s practice of holding preliminary
Many of Cullen’s recommendations have of course already been implemented by the Crown Office Procurator Fiscal Service (COPFS) such as the establishment of a central FAI team (SFIU). The recommendations aimed at ensuring the distinction between ‘fact, not fault finding’ FAIs and criminal
hearings become standard. The consultation suggests that it is not practical to set a minimum timescale after the death within which the FAI should be opened because of the varying time that investigations take and invites comment on that.
cases are felt to be matters for the Lord President (Scotland’s
There is considerable discussion about how FAIs should be
senior judge) and the Scottish Court Service (SCS) to take
accommodated to avoid delays due to the lack of availability
forward. These include FAIs being held without wigs, gowns
of a court room and ensure the least connection with
and hostile questioning and not in criminal court rooms. It
criminal proceedings. The options are to hold the hearings
is noted to be current practice for a sheriff with appropriate
in an unlimited number of ‘ad hoc’ premises; or alternatively
skills to be assigned to a complex FAI.
to establish three dedicated, regional centres.
The Government proposes that all deaths resulting from
It is proposed that a standard form of determination
an accident while working continue to be the subject of a
should be used by Sheriffs. Subject to redaction, these
mandatory FAI. They doubt the benefit of widening this to
would all be published on the SCS website. In relation to
include deaths arising from industrial diseases and historic
ensuring compliance, the Government agrees the Sheriff’s
exposure and invite comment on whether this current
determinations should not be legally binding. They propose
category is sufficient. The proposed expanded list of
a duty be placed on Sheriffs to ensure recommendations
circumstances in which an FAI will be mandatory includes
are sent to any relevant body concerned with safety in the
where the deceased was arrested or detained by police, or
industry as well as the parties. The consultation proposes
a child in ‘secure care’ of a public authority.
that parties should be under a duty to respond to the
Unlike in England and Wales, there is currently no requirement for an FAI to be held where a person domiciled in Scotland dies abroad but the body is repatriated.
recommendations, but doubts Government resources exist to monitor compliance. This would bring the Scotland into line with what happens after coroners’ inquests.
The consultation invites comment on whether there are
Responses to the proposals are invited by Tuesday 9
circumstances in which such a hearing should be held and
September. If you would like any advice on a response
if so what parameters should be set.
please contact:
Unsurprisingly, given the publicity criticising delays in FAIs
Laurie Traynor
being heard, a focus of the proposals is speeding up the
E: laurie.traynor@plexuslaw.co.uk
process. Steps already taken in this regard include the
T: 0844 245 4803
Lord Advocate’s instruction that the request for an FAI be
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