Download - Legal Watch - Personal Injury - Issue 10
Legal WatchPersonal InjuryMarch 2014
Issue 010
02
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
direction? That was the issue in Gray v Gibson [Lawtel
06/03/2014].
The appellant/claimant had been driving her car along a
single-carriageway country lane with a national speed limit.
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
a lorry driver to be careful as he had insufficient visibility
around the bend, and that he had been travelling too fast.
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,
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:
MBIG Seminar 22.05.2014 - Wellcome Collection,
London, NW1
In This Issue:
• RTA/Liability
• Causation
• Jackson/Mitchell - Expert Witnesses
• Procedure/Default judgment
RTA/Liability
03
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]
04
The case of Leigh v London Ambulance Service (2014)
EWHC 286 (QB) looks at causation in a case where the
usual ‘but for’ test could not be applied but where the
defendant’s negligence was found to have made a ‘material
contribution’ to the claimant’s condition.
The claimant dislocated her right kneecap as she went to
sit down on a bus. She was trapped between the seats,
was unable to move and in severe pain. An ambulance was
called but it did not arrive until 50 minutes after the injury.
During that time, passengers held the claimant down to stop
her moving as instructed by the emergency operators. She
felt trapped and helpless to end the pain. The defendant
admitted that there was a negligent delay of 17 minutes in
the attendance of the ambulance amounting to one third of
the total period between the dislocation and the arrival of
the ambulance. It was accepted that the claimant suffered
consequential psychiatric and psychological damage,
namely post-traumatic stress disorder (PTSD). It was also
accepted that from a date that was in issue, the claimant
had suffered dissociative seizures. The defendant’s medical
expert was of the opinion that the PTSD was probably
caused within about the first 15 minutes on the bus and
therefore that the negligent delay had no part to play in
its development. His evidence was that the claimant’s
dissociative seizures occurred much later than the onset
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
claimant had a pre-existing vulnerability to such episodes.
The claimant’s evidence was that the seizures began soon
after the onset of her PTSD symptoms. During questioning,
Causationshe had a dissociative seizure resulting in her collapsing in
her seat. The issues were whether there was a causative link
between the admitted negligence and the PTSD and/or the
dissociative seizures.
Finding in favour of the claimant, the High Court judge held
that the evidence of the claimant’s medical expert was to
be preferred. There was no injury that was caused on the
bus, merely circumstances that arose which later led to the
onset of PTSD. There were innumerable variables in the
circumstances that might give rise to the development of
PTSD and in the people who were likely to suffer it. It was
impossible to predict on any scientific or mathematical basis
the moment after which someone would go on to suffer it.
The instant case was a “cumulative cause” type case. The
court was unable to find on the balance of probabilities
that the claimant’s PTSD would have occurred in any
event before the negligent delay. The instant case was one
where medical science could not establish the probability
that “but for” the negligent delay the PTSD would not have
happened, but it had been established that the contribution
of the negligent failure was more than negligible. It made a
material contribution to the development of the claimant’s
PTSD and therefore the claimant succeeded in establishing
the necessary causative link.
“...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 seizure during questioning was undoubtedly
genuine and a product of the pressure of the experience.
05
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 post-
traumatic 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)
06
Jackson/Mitchell - Expert WitnessesThe courts’ powers to control witness evidence in the
post-Mitchell era and to take into account the impact of
case management decisions on parties in other cases is
illustrated in Clarke v Barclays Bank Plc (2014) EWHC 505
(Ch).
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
information about the first expert’s withdrawal beyond a
reasonable period. Once the claimant had decided that he
had to find a new expert to replace the first expert, he should
have disclosed the problem to the court and the other
side. The expert’s withdrawal was outside the claimant’s
control and there was little doubt that the court would have
been sympathetic to him if he had applied promptly for
directions. The inference was irresistible that the claimant
withheld the information in order to see if he could settle
the case in a proposed mediation on favourable terms
before he disclosed his difficulty and thereby undermined
his negotiating position. That strategy failed when the
mediation was delayed. It was also clear that the other
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”It had been the claimant’s clear duty, under CPR PD 23A -
2.7 to apply for further directions very soon after 3 May 2013.
If he had done so, the court would have managed the time
within which he had to identify and instruct a new expert.
As it was, however, if the new expert’s report was admitted,
the trial would have to be vacated to the detriment of other
court users. It was an important factor that the court should
enforce procedural discipline in order to raise standards of
07
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 co-
operate in narrowing the issues.
Clarke v Barclays Bank Plc (2014) EWHC 505 (Ch).
08
Procedure/Default JudgmentDefendants should note the case of Samara v MBI Partners
UK Ltd and another (2014) EWHC 563 (QB), which confirms
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.
CommentThe 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.
Samara v MBI Partners UK Ltd and another (2014)
EWHC 563 (QB)
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.
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