Legal WatchPersonal InjuryJanuary 2014

Issue 004

02

Cases relating to damages in fatal accident cases are

relatively rare and the case of Haxton v Philips Electronics

Plc (2014) EWCA Civ 4 is therefore of particular interest,

although, as the court made clear, the point in issue was

one of some novelty. The claimant had suffered a reduction

in her damages because of the operation of the Fatal

Accidents Act. Could she recover the shortfall as a head of

damage in her own claim?

The claimant’s husband had died as a result of contracting

mesothelioma through exposure to asbestos during

his employment with the defendant for over 40 years.

Subsequently the claimant, whom the defendant had never

employed, was also diagnosed with mesothelioma; as she

had come into contact with asbestos when she washed the

deceased’s work clothing. Proceedings in the claimant’s

capacity as widow and administratrix of her husband’s

estate under the Law Reform (Miscellaneous Provisions) Act

1934, and also as a dependant under the Fatal Accidents

Act 1976 were settled by consent, and damages for loss

of dependency were based on the claimant’s remaining life

expectancy being 0.7 years due to the mesothelioma. The

claimant had also issued proceedings in her own right for

damages for negligence and breach of statutory duty. Liability

was again conceded and damages agreed at £310,000, but

recovery of a further £200,000 was denied in relation to her

future dependency claim. The claimant argued that but for

the defendant’s negligence, her life would not have been cut

short and the assessment of her dependency claim in the

first action would have been significantly greater. The issue

was whether the claimant’s common law dependency claim

in her own right was a recoverable head of damage. The

claim was dismissed at first instance.

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In This Issue:

• Damages/Fatal Accident

• RTA/Liability

• Civil Procedure

• Civil Procedure/Litigation Friend

Damages/Fatal Accident

03

In her appeal, the claimant submitted that it was in principle

legitimate to allow as a head of damage a diminution in

value of a chose in action resulting from a negligent act.

“...the reduction in the dependency compensation was a loss actually suffered by the claimant when her dependency claim under the Fatal Accidents Act was settled”Allowing the appeal, the Court of Appeal held that there

was no reason of principle or policy which deprived the

claimant from recovering damages which represented the

loss she had in fact suffered as a result of the curtailment

of her life by the defendant’s admittedly negligent action.

The 1976 Act conferred a statutory right to recover for the

loss of dependency and in the claimant’s claim under that

Act she could not recover more than her actual loss; but

there was no reason why the diminution in the value of

that right resulting from the defendant’s negligence could

not be recovered as a head of loss in her personal action.

That did not interfere with the principles governing the

payment of compensation under the legislation; they were

left wholly unaffected. The claimant’s claim was a common

law claim for damages for loss of dependency; it was one

for diminution in the value of a valuable chose in action,

a statutory right. There was nothing in the language of the

1976 Act or the authorities which suggested that there was

any special attribute distinguishing that particular chose in

action from any other. That head of loss was recoverable in

law. Moreover, in the same way that a loss or diminution of

a contractual right might be recoverable even though it was

not directly suffered by a claimant, a fortiori that should be

the case where, as in the instant case, the reduction in the

dependency compensation was a loss actually suffered by

the claimant when her dependency claim under the Fatal

Accidents Act was settled. The fact that the source of that

right was statutory and not contractual was not a material

distinction.

The claimant’s personal dependency claim was not too

remote: it was reasonably foreseeable that a curtailment

of life might lead to a diminution in the value of a litigation

claim and if a claimant had such a claim, a wrongdoer

must take the victim as he finds him. It had to have been

foreseeable to the defendant that the claimant would have

dependency rights which would be diminished as a result

of its negligence. The claimant was entitled to an additional

£200,000.

Haxton v Philips Electronics Plc (2014) EWCA Civ 4

04

RTA/LiabilityThere are two cases under this heading. Both were decided

on the basis of what a prudent driver would have done in

the circumstances.

“The driver’s action was a reasonable reaction of a reasonable bus driver”

In Cridland (Protected Party) v Stagecoach (South) Ltd

[Lawtel 23/01/2014] the claimant had been a passenger on

a double deck bus being driven by the defendant’s driver.

Ahead of the bus and heading in the same direction was

a youth who was riding a push scooter. When the bus was

a few feet from the youth it was braked violently and the

claimant was thrown forward suffering serious injuries.

The defendant argued that the driver had seen the youth

ahead of him, maintained observation and when he was a

car length away slowed down to 11 mph, and could not

overtake the youth because of an oncoming vehicle. He

sounded his horn so that the youth could move aside and

that his intention was to make him aware of his presence.

The youth’s unexpected reaction was to make a gesture

which appeared to be to throw his scooter into the air and

motioning to throw it at the bus’s windscreen; and that the

driver’s action in braking was to avoid that happening. The

youth then carried on and disappeared from the scene.

Evidence was given by a number of passengers and there

was a CCTV recording from the bus. The claimant himself

was too unwell to give evidence and had no memory of the

accident. Evidence was given by his partner and litigation

friend who had also been on the bus. The partner’s evidence

was that before and after the sudden braking the driver had

made abusive and obscene gestures at the youth and had

allowed himself to become cross with him. The driver gave

evidence on behalf of the defendant, along with a number

of other witnesses who had been passengers on the upper

deck. The trial was in respect of liability only.

Dismissing the claim, the deputy High Court judge held

that where the claimant’s partner’s evidence conflicted

with the defendant’s driver’s, the driver’s evidence was to

be preferred. The defendant’s witnesses evidence was not

internally inconsistent. The driver’s evidence was consistent

with that of the other witnesses whose view was that the

accident was the youth’s fault. None of those witnesses

criticised the driver. If he had not sounded the horn the

youth would have carried on. The youth’s refusal to get out

of the way was clear anti-social behaviour. The defendant

had employed the driver for seven years; at the date of the

accident he was experienced and properly trained. The driver

was a credible witness and had a good personnel record.

The defendant’s other witnesses were all on the upper deck

of the bus and had a good view of the accident. The youth

aggressively swung himself in the air bringing the scooter

near the bus’s windscreen. The driver’s reaction in those

circumstances could not be faulted. From the CCTV footage

the driver’s gestures were not provocative or abusive, in any

case the youth did not see them. It was the honking of the

horn and not the proximity of the bus that caused the youth

to make his gestures. The driver was aware of the oncoming

vehicle which was visible from the CCTV evidence. The

youth was aware of the bus but chose to remain in the road.

His reaction was not one of alarm but a threat of violence.

No reasonable driver could have predicted that the youth

would have reacted in the way he did. The driver’s action

was a reasonable reaction of a reasonable bus driver. He

was not speeding and at the critical point he slowed down

and braked. It was the youth’s gesture that caused him to

brake and he had no alternative but to brake. The driver had

not allowed himself to become cross with the youth. The

accident was caused by the youth’s anti-social behaviour in

making the gesture that he made.

05

The second case is Train v Secretary of State for Defence

[Lawtel 23/01/2014].

The claimant’s deceased husband had been riding his

motorcycle down a road on a barracks when he crashed into

the side of a minibus driven by a soldier, which had begun

to turn right in front of the deceased in order to enter a filling

station. The soldier said that he had observed the road and

seen the deceased, but had concluded that he had enough

time to make the turn as the motorcycle was far away, and

that he had not seen the deceased after that. Witnesses

at the scene gave evidence that the deceased had been

travelling very fast and that he had glanced momentarily

to the left towards a group of soldiers before seeing the

minibus ahead and braking sharply. It was conceded that

the deceased had been driving in excess of the speed limit.

The issue was who had caused the accident.

“A prudent driver would have waited until the deceased had passed unless he had been sure of the motorbike’s speed”

Finding in favour of the claimant but with a finding that the

deceased had been contributorily negligent, the deputy High

Court judge held that the starting point was that the deceased

had the right of way and that the soldier should only have

turned if it was safe to do so. The deceased was travelling

certainly in excess of 30 mph and probably in excess of 40

mph before he realised that the minibus was ahead. The

soldier had been a consistent witness throughout and his

account that he had observed the road before turning right

and genuinely believed that there was sufficient time to turn

was accepted. By driving over the speed limit and glancing

to the left at the soldiers the deceased was unable to stop in

time. Nevertheless the soldier should not have turned until

he was satisfied of the motorcycle’s speed. A prudent driver

would have waited until the deceased had passed unless

he had been sure of the motorbike’s speed. Although the

soldier had said that he was certain that he had enough time

to make the turn, the court was not satisfied that he had

assessed how fast the deceased was travelling. He should

have seen that the motorbike was going in excess of 20

mph, and if in any doubt about that, waited. The deceased

was the principal but not the only author of his misfortune.

Damages recoverable were to be reduced by 80 per cent

having regard to the deceased’s part in the accident.

CommentIt is a matter of semantics only but it is interesting that the

judges in these cases both referred to the ‘prudent’ driver.

In Stewart (Protected Party) v Glaze (2009) the trial judge

stated that a driver’s actions had to be considered by

reference to the standard of a reasonable driver, whereas

in Boyle v Commissioner of Police of the Metropolis (2013)

the judge covered both bases by using the term ‘reasonably

prudent’ driver .

Cridland (Protected Party) v Stagecoach (South) Ltd

[Lawtel 23/01/2014]

Train v Secretary of State for Defence [Lawtel

23/01/2014].

06

Civil ProcedureIn the post Mitchell era it seems inevitable that there will be

a flurry of cases confirming how in the future the courts will

approach various forms of application. In the commercial

case of M A Lloyd & Sons Ltd v PPC International Ltd (2014)

EWHC 41 (QB) it was witness statements that were under

consideration. This case also illustrates that an agreement

between the parties may not be sufficient for the court.

The claimant had brought a claim for breach of a

confidentiality agreement and passing off. The defendant

was a company incorporated under the laws of Brunei. The

claimant argued that the defendant was “legally extinct”

and had no entitlement to litigate in the United Kingdom.

The claimant was ordered to file and serve a witness

statement by 25 October 2013 dealing with matters of fact,

and a skeleton argument on matters of law, in connection

with the defendant’s existence and entitlement to litigate.

The defendant was ordered to file and serve a statement

in response. By the date of the defendant’s application in

December 2013, the claimant had failed to file a statement

or skeleton. The claimant thereafter proposed a revised

timetable which the defendant agreed. The claimant

therefore did not attend the hearing of the defendant’s

application but produced a draft statement which asserted

that it had been unable to comply with the order because

the registry for companies in Brunei would not release the

requisite information without first receiving a number of

documents from the defendant. The statement went on to

list those documents which the claimant believed it was

necessary for the defendant to disclose. The claimant’s

counsel attended court the morning before judgment was

to be handed down and made fresh submissions.

The High Court judge held that the following matters were

abundantly clear: (a) the claimant should have informed the

court of its alleged inability to provide the evidence before

the order was made; (b) if the fact that the claimant would

be unable to comply with the order only came to light after

it had been made then the claimant should have made

an application to extend time for compliance as soon as

practicable and before the deadline for compliance had

passed; (c) the claimant should have made a prompt

application for specific disclosure of the categories of

document sought and not simply incorporated a wish list of

such documents in the body of a witness statement in the

forlorn hope that the court would make an order of its own

motion (emphasis added).

“In light of the decision in Mitchell, the courts had taken a consistently robust approach to the late service of witness statements”

As the matter currently stood, the claimant was precluded

by the operation of CPR 32.10 from calling at trial any

intended witness in respect of the issues identified in the

order. The burden of proof in respect of the issues raised

about the defendant’s standing fell upon the claimant. In the

absence of evidence, the claimant’s contentions in respect

of those issues would fail unless the court was persuaded

to grant relief from sanctions under CPR 3.9. The court was

entirely satisfied that there was no realistic prospect that

relief from sanctions would ever be granted. In light of the

decision in Mitchell, the courts had taken a consistently

robust approach to the late service of witness statements.

The claimant’s delay of nearly three months was serious

and the resultant breach could not be categorised as trivial.

Further, there was no evidence of any good reason for the

delay. It was not open to the claimant to allow weeks to pass

07

without taking positive steps to comply with the order on the

basis that further disclosure, for which no formal application

had been made, was awaited. The fact that the claimant

had proposed a consent order extending time fell far short

of salvaging its position. It was clear from CPR 3.8(3) that

the time for doing acts ordered by the court could not be

extended by agreement between the parties. It followed that

even if the parties had reached a concluded agreement on

an extension of time it would not have been effective unless

the court formally endorsed it. The court declined to take

the course advocated by the defendant’s application. Its

response to the claimant’s default was unduly timid. In the

circumstances, the proper approach was to make an order

debarring the claimant from raising any issue at trial relating

either to the existence of the defendant or its entitlement to

litigate in the UK.

The court had power under CPR 23.11 to re-list an

application where it had proceeded in the absence of one

of the parties, but it was a power that was to be exercised

sparingly. As a result of the claimant’s decision not to

attend, the judgment which was to be handed down the

following day had to be re-drafted to take into account the

fresh submissions raised by its counsel. A disproportionate

amount of the court’s time had been taken up. A party could

not simply assume that it could absent itself confident in the

assumption that CPR 23.11 afforded a comfortable fallback

position if the court’s order was not to its liking.

We also mention briefly the case of Webb Resolutions Ltd

v E-Surv Ltd (2014) EWHC 49 (QB) which shows that the

Mitchell approach applies equally to an application seeking

permission to appeal out of time. A party in default seeking

an extension of time for a renewed application for permission

to appeal had to satisfy the same tests as were applied to

the default in Mitchell. In the instant case the default was

not trivial; the delay had been for a period of about three

times that permitted by the rules and there was no good

reason for the delay. Accordingly, the earlier order extending

time was set aside and permission to appeal was refused.

M A Lloyd & Sons Ltd v PPC International Ltd (2014)

EWHC 41 (QB)

08

Civil Procedure/Litigation FriendFrom time-to-time it becomes necessary for one party to

litigation to suggest that a claimant’s litigation friend may

no longer be the most suitable person to fulfil that role. The

most common situation that we have experienced is where

a mother finds it impossible to detach herself from her role

as mother to make objective decisions as litigation friend.

In M (A child) v London Borough of Lambeth and others

(2014) EWHC 57 (QB) it was the suitability of the claimant’s

father that was under scrutiny.

“It was probable that if a new litigation friend were to be appointed the claimant’s parents would remain as unco-operative as they currently were...”

The claimant had fallen from the window of a block of flats

and suffered serious injuries. He was aged four at the date of

the accident. By the date of the instant hearing he was aged

approximately 14. His medical expert stated that he had

probably suffered a brain injury and there was “significant

brain impairment” caused by the accident. However, the

defendant’s experts stated that the claimant’s impairments

“were consistent with his pre-injury functioning” and on

balance were probably “secondary to his inherent pattern

of development and may have been contributed to by social

and cultural factors”. The claimant’s father and litigation

friend was no longer prepared to co-operate with medical

experts and was not amenable to putting recommended

support in place for the claimant. He had instructed the

claimant’s solicitor to settle the claim as soon as possible.

The solicitor sought the court’s guidance upon whether

the father’s appointment as litigation friend should be

terminated, and whether the case should be settled even

though it remained unclear whether the claimant had

suffered a brain injury, and what his disabilities might be in

the future.

The High Court judge dealing with the application held that

any settlement would require the approval of the court, but

it would not be appropriate for a claimant’s legal advisers to

pursue a negotiated settlement unless there was a reasonable

prospect of the court approving it. It was probable that if

a new litigation friend were to be appointed the claimant’s

parents would remain as unco-operative as they currently

were, and that would not assist in advancing the claimant’s

best interests. Having considered the evidence, and the

claimant’s counsel’s thoughtful submissions, the best

course in the circumstances was for the claimant’s legal

representatives to seek to negotiate settlement on the basis

of the existing medical and other evidence, as instructed by

the claimant’s father.

M (A child) v London Borough of Lambeth and others

(2014) EWHC 57 (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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