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Legal Watch:Personal Injury29th January 2015Issue: 049
In This Issue:
• Employers’ liability
• Employers’ liability/costs
• Public liability
• Civil procedure/expert evidence
• Part36
• Costs/conditional fee agreements
• From within Greenwoods
Employers’ liability
Events
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:
The Major Bodily Injury Group (MBIG) | Spring
Seminar | 28.04.15 | The Wellcome Collection,
London
The case of Dusek and others v Stormharbour Securities LLP
(2015) EWHC 37 (QB) illustrates how an employer may attract
liability if it fails to enquire adequately about the safety of travel
arrangements made for an employee.
The claimants, who were the wife and children of a deceased
employee, brought a fatal accidents claim against the
defendant employer.
The deceased had been working on a project to secure funding
to develop hydroelectric projects in the Andes Mountains
in Peru, along with a Peruvian investment company. Two
Korean companies were identified as potential investors. It
was decided that it was necessary for the investors to visit
the site and the investment company advised one of the
Korean companies that the site was reachable either by long
overnight jungle walks or by a road trip to an airfield and
then a helicopter ride. The Korean companies requested
that a representative of the defendant was present and so
the defendant sent the deceased on the trip. The Peruvian
company chartered a helicopter from Cusco to Mazuco. One
of the quotations received advised against flying from Cusco
and instead recommended starting from Mazuco to avoid
crossing the Andes because of the remote and inhospitable
terrain. The Peruvian company went with an operator willing
to fly the route it wanted. The first leg of the trip from Cusco
to Mazuco, although completed, was delayed due to poor
weather conditions and the maximum permissible density
altitude and weight were exceeded. The parties then flew
around the project site but returned to Mazuco because of
poor weather conditions. The crew made a flawed decision
to fly back to Cusco the same day and ran into operational
difficulties as a result. They crashed into the Andes Mountains
and everyone on board the flight was killed.
The issues were (i) whether the scope of the employer’s
duty of care extended to the helicopter charter and flight;
(ii) if there was such a duty, did the employer breach it; (iii)
if the employer breached its duty, did that breach cause the
employee’s death.
Finding in favour of the claimants, the High Court judge
held that the deceased had been on the helicopter for
the purposes of his employment and the defendant owed
him a duty to take reasonable care not to subject him to
unnecessary risk. Irrespective of whether it had organised
the helicopter trip or whether the employee was looking to
it to take reasonable care of his safety, the employer owed
him a duty to take reasonable care to ensure that he was
reasonably safe while travelling to and from work abroad
where he was required to go.
“(The defendant) owed a duty to safeguard the employee from the danger involved by inquiring into the safety of the trip and conducting a risk assessment.”It was clear that there were obvious potential dangers
involved in the trip, namely unsafe operation or performance
of the helicopter. The defendant knew that the deceased
would be going on a chartered helicopter trip to visit a site
in a remote, inhospitable, inaccessible and mountainous
area. It owed a duty to safeguard the employee from the
danger involved by enquiring into the safety of the trip and
conducting a risk assessment. It had no knowledge of
whether the companies that organised the trip had flown
with the helicopter operator previously, had carried out a
risk assessment or had any safety concerns. Its health and
safety officer accepted in evidence that something should
have been done. In doing nothing, the defendant breached
its duty of care.
The defendant should have enquired of the Peruvian
company as to details of the flight operator, the helicopter to
be used, the flight route and how they satisfied themselves
as to the safety of the flight route. The Peruvian company
had been advised to take a coach from Cusco to Mazuco
as it was safer to begin helicopter travel from there because
of the dangers of flying over the Andes. If the employer had
made the safety enquiry required to make an appropriate
risk assessment, it would have instructed its employee
not to take the flight because of safety concerns and he
would have listened. The defendant’s breach caused the
deceased’s death.
Employers’ liability/costsPrior to 1 April 2013, lower value employers’ liability claims
were subject to a fixed uplift of the claimant’s solicitor’s
base profit costs by way of the success fee under an old
style CFA. The issue in Broni and related claims v Ministry
of Defence (2015) EWHC 66 (QB) was whether that regime
applied to members of the armed forces i.e. were they
‘employees’?
The appellants were three members of the armed forces
who appealed against decisions that the fixed success fee
regime applied to the claims that they had brought against
the respondent defendant in respect of injuries they had
sustained at work.
CPR 45 IV had provided for fixed success fees in certain
employers’ liability claims. CPR 45.20(1)(a) provided that
“this Section applies where... the dispute is between an
employee and his employer”. CPR 45.20(3)(b) stated that
“employee” had the meaning given to it by S2(1) Employers’
Liability (Compulsory Insurance) Act 1969, which defined
an “employee” as “an individual who has entered into or
works under a contract of service or apprenticeship with
an employer”. It was decided that the claimants were
employees and that the fixed success fee regime therefore
applied to their claims.
The defendant, seeking to uphold the decisions below,
argued that the court should adopt a purposive approach to
the construction of the words “contract of service” in S2(1)
of the 1969 Act so that the relationship between a serving
member of the armed forces and the defendant was treated
as one of employer and employee.
Allowing the claimants’ appeals, the High Court judge
held that there was no good reason for giving the words
“contract of service” in S2(1) of the 1969 Act a construction
broader than their usual meaning. There was no ambiguity
in CPR 45.20(1)(a) and 45.20(3)(b). The rule addressed
itself to the question of what the term “employee” meant:
it was a person who fell within S2(1) of the 1969 Act. There
was in those circumstances no scope for giving a broad
or purposive interpretation to CPR 45.20(1)(a) different
from the specific meaning given to the term “employee”
by S2(1). The words “contract of service” in S2(1) had a
single meaning which did not vary. The claimants were not
engaged under a contract of service and the fixed success
fee regime did not apply to their claims.
“The claimants were not engaged under a contract of service and the fixed success fee regime did not apply to their claims.”
Public liabilityThe case of Baxter v Barnes (2015) EWHC 54 (QB) involved
a claim for personal injury brought primarily in contract.
The claimant, an arborist, had sustained serious injuries
when he fell from a piece of equipment which he had hired
from the defendant in order to prune a tree. The equipment
was a mobile elevated work platform. Access to the site
was limited and the tree was close to a slope. The platform
was specifically designed for such situations. It was
suitable for working on sloping ground, provided that the
feet of the outriggers were properly supported on ground
that was reasonably level, firm and stable. The defendant
delivered the platform to the site and helped to set it up in
the first position from which the claimant was going to use
it. Together with the platform, he supplied the claimant with
hard plastic plates, to support the feet of the outriggers of
the platform. Those plates had not been supplied by the
manufacturer for use with that platform. After using the
platform at the first position within the site, the claimant’s
employees moved the platform to another position. Whilst
the platform was in use, it overbalanced and toppled over.
Subsequent investigations revealed that two outriggers had
lifted up from the ground. The experts agreed that, on the
balance of probabilities, the platform had become unstable
and toppled because one or more of the outrigger feet
slipped off the edge of the plate into the soft ground.
The claimant submitted that the accident had been caused
by defects in the platform and/or instructions which the
defendant had given to him in relation to setting up the
platform. The defendant’s case was that the accident was
solely due to errors by the claimant in setting up or operating
the platform.
Finding in favour of the claimant, the deputy High Court
judge held that the claimant was an experienced arborist
who was generally careful for his own safety and that of
his employees. Whilst he had not previously hired that type
of platform, he was knowledgeable about the principles
behind its operation. Further, on the day of the accident
his employees had set up the machine in essentially the
same way and position as the day before. They had not
set it up in a position which the defendant had advised
was unsuitable and they had followed the defendant’s
instructions in setting it up. It was clear on the evidence
that the position was not unsuitable for the positioning of a
platform of suitable quality. In particular, the manufacturer’s
evidence was that the ground appeared suitable for the
platform and that the movement of the outrigger foot was
as a result of the operation of the platform, not the collapse
of the plate into soft ground. The cause of the accident
was the slippage of the outrigger foot upon its bearing
plate. That slippage occurred because the plate was not
of suitable quality for the type of platform concerned. The
platform was specifically designed for use on rough or soft
terrain and on slopes and narrow or uneven surfaces, where
it was liable to be subjected to lateral forces which could
cause a foot, if unrestrained by its bearing plate, to move
considerably. The platform should have been provided with
bearing plates which were attached to the outrigger feet or
so shaped or recessed that the feet were prevented from
slipping off the plate. For that reason, the platform supplied
by the defendant was not of a satisfactory quality for the
purposes of the implied condition contained in S9(2) Supply
of Goods and Services Act 1982. The platform also toppled
over without any warning device or cut-out operating,
whether because of a particular fault which had developed
on that specific platform, or because the combination of
the particular way the topple was initiated and the design
of the platform resulted in the warning device and cut out
not operating before the topple was initiated. The claim
succeeded in contract, but the defendant did not have a
separate liability to the claimant in negligence.
Civil procedure/expert evidence The Jackson reforms reasserted the need for judges to
control expert witness evidence. In Rengasamy v Homebase
Ltd [Lawtel 26/01/2015] the judge appears to have been
overzealous. Even so, the appeal court placed restrictions
on the time allowed at the trial for oral expert evidence.
The defendant appealed against the judge’s decision to
refuse permission for the parties’ engineering experts to
give oral evidence at the trial of a personal injury claim
brought by the claimant, and it sought an extension of a trial
estimate from two days to three days.
The claimant had fallen off a ladder which had been
purchased from the defendant. He claimed damages for
personal injuries arising from the defendant’s breach of the
implied term as to satisfactory quality under S14(2) Sale
of Goods Act 1979. Both parties instructed engineers to
assess the ladder and they drafted a joint statement. They
agreed that the claimant’s injuries were consistent with
either the ladder collapsing with him on it, or him falling off
the ladder with the ladder then falling to the ground and
him landing on it, but disagreed as to which scenario was
more likely. If the ladder had collapsed then the issue was
whether the ladder was of a satisfactory quality. The claim
was in the region of £31,000.
The defendant submitted that the judge had erred in refusing
permission to allow the experts to give oral evidence
at trial and argued that a time estimate of three days
was appropriate. The claimant contended that the case
management decision was reasonable in the circumstances
and did not exceed the generous ambit of the judge’s
discretion and that the cost of extending the length of the
trial to three days was disproportionate given the value of
the claim.
‘Without hearing oral evidence the court would not have the opportunity to see which of the experts’ evidence was more reliable.’Allowing the defendant’s appeal in part, the High Court judge
held that the court fully supported the judge’s attempts to
address proportionality in terms of the time and costs of
the trial in the interests of both parties. However, the parties
had already proceeded to an exchange of experts’ reports
to allow the court to assess them and had embarked on a
process that allowed them to adduce expert evidence at
trial. That evidence made a key contribution and the experts
differed. Without hearing oral evidence the court would not
have the opportunity to see which of the experts’ evidence
was more reliable. The court was not satisfied that, on
the face of the judge’s reasoning, the way that the expert
evidence could contribute to the case had been taken into
account. The judge had been correct to attempt to control
the parties’ costs and the court’s time by keeping the trial
to a limit of two days. The only criticism was that she had
sought to achieve that by not allowing the parties to adduce
expert oral evidence. The court agreed with the two-day
estimate but made an order that the parties were required,
within seven days, to agree a trial timetable for two days
of court time, with a recommendation that the expert oral
evidence was kept to a half-day limit.
A second case under this heading is Ellison v University
Hospitals of Morecombe Bay NHS Foundation Trust [Lawtel
28/01/2015], which shows the court applying the post
Mitchell approach to the late service of evidence.
The claimant had received the defendant’s accommodation
report in January 2015. The trial was due to start in the
first week of February. The claimant applied to debar the
defendant from relying on the report. The claimant’s case
was that she and her family had been reasonable in their
desire to be relocated from Cumbria to an area in South-
West London, around Richmond, close to the father’s work
and a specialist school for the claimant and her siblings.
The defendant’s case was that there was no reason to
relocate and that even if the trial judge found that relocating
to London was reasonable, there were suitable properties
available elsewhere. In its counter-schedule of June 2014,
the defendant contended that the Richmond area was
expensive and that there was cheaper accommodation
elsewhere, and that the claimant had failed to mitigate loss.
It reserved the right to look at alternative proposals. The
defendant’s January expert report summarised a range of
properties in different areas within a one-hour commute
of central London. The claimant objected to the report on
the basis that although the addresses were a reasonable
commute, other factors such as a suitable school had been
ignored.
The claimant submitted that as it was only a week until
the trial start date, the trial would have to be adjourned;
and her expert would have to undertake a lot of work in
examining the suitability of the properties put forward
by the defendant. She further argued that the situation
was analogous to an application to extend time, and that
the court should adopt the approach in Mitchell on relief
from sanctions. The defendant submitted that the report
was simply supplementary evidence and that its purpose
was to provide details of alternative housing in London to
assist the trial judge. It further submitted that its report was
clearly foreshadowed by the counter-schedule and that the
claimant could address the issues within a week and at the
worst, the trial would only have to be adjourned for a short
period.
“It was especially troubling that the trial date would have to be put back”Allowing the claimant’s application, the High Court judge
held that the report was not simply updating the evidence
but had included new matters. The claimant was right to say
that a lot of work would have to be undertaken to address
the points raised. It was especially troubling that the trial
date would have to be put back. Further, the defendant
had not applied for permission to use the report. It was
not appropriate to determine whether it was a relief from
sanctions case, but in any event the approach in Mitchell
was highly material. It was not a trivial matter. The defendant
had the onus of establishing that the claimant had failed to
mitigate losses. It had taken the view for at least six months
that if the claimant was to be relocated to London the search
for accommodation should go beyond the Richmond area,
but it was not until the eleventh hour that it put in concrete
its evidential case. The claimant’s case had always been
to be relocated. There had to be compliance with court
orders, and there was a need to avoid delaying the trial. The
circumstances of the case militated against allowing the
trust to admit the evidence.
CommentThis case highlights that defendants who wish to challenge
a claimant’s move to a new property, in a different area, must
take the initiative and locate and offer what they consider to
be a suitable option.
Part 36As Uwug Ltd and another v Ball (2015) EWHC 74 (IPEC)
illustrates, arguments continue over the application of Part
36.
In an intellectual property claim the defendant had made a
Part 36 offer, giving no details of how he had arrived at the
sum which he proposed to pay in damages. The claimant
did not accept the offer. The defendant withdrew it and
the relevant period expired, under CPR 36.3(1)(c). The
defendant subsequently made a fresh Part 36 offer, in the
same terms as his first one, giving no further reasoning. The
claimant rejected it. The claimant was ultimately awarded
damages which were substantially less advantageous than
those offered by the defendant.
The defendant argued that the court had a wide discretion
in relation to costs, relying on observations made in Bolton
(1995). The claimant argued that the defendant’s Part 36
offers should be disregarded because they contained no
information to allow him to assess whether to accept them
and the defendant’s status as a litigant in person should not
affect that. He also contended that the defendant’s refusal
to enter into mediation should weigh in the balance against
him.
The judge held that there always had to be sufficient flexibility
of approach in assessing costs, to achieve the overriding
objective of dealing with cases justly. However, the court
also had to observe the guidelines in the CPR, particularly
CPR 36.14. The observations in Bolton warned against the
unreflective application of a familiar approach to assessing
costs without sufficient regard to the justice of the case on
the particular facts, but there was no suggestion that the
court had unshackled freedom in the assessment of costs.
“…it did not follow that the defendant’s offer had to be treated as if it had never happened.”Under CPR 36(14)(6)(a), the usual consequences of a
claimant failing to obtain a judgment more advantageous
than the defendant’s Part 36 offer did not apply where the
offer had been withdrawn. However, it did not follow that
the defendant’s offer had to be treated as if it had never
happened. There was no obligation on a party making a Part
36 offer to spell out his reasons, but if he plucked a figure
from the air that might count against him in relation to costs
if the opposing party was left unreasonably in the dark as to
how the offer was calculated. The extent to which a party’s
position was disadvantaged by ignorance of the rationale
behind a Part 36 offer would depend on the facts of the
case. In the instant case, the claimant had been in a position
to assess how the defendant’s offer matched up with the
damages and interest which he would be likely to receive,
on various alternative views as to the outcome, at trial.
However, the defendant’s first offer should not be treated
if it had never been withdrawn. Litigants in person, like all
litigants, had to live with the consequences of ill-advised
procedural decisions. On the other hand, the claimant
should have accepted the offer. Further, the defendant’s
refusal to enter into mediation should not count against him
as it would have been likely to have been unsuccessful and
to have led to a waste of time and expenditure. The claimant
should have his costs up to the date of expiry of the first
Part 36 offer, but no further. The defendant would have his
costs from the date of the second Part 36 offer.
Costs/conditional fee agreementsIn Legal Watch: Personal Injury 6 we reported the decision
in the first appeal in Blankley (Protected Party) v Central
Manchester & Manchester Children’s University NHS Trust.
The defendant’s appeal against that decision has now been
refused by the Court of Appeal and is reported at (2015)
EWCA Civ 18.
The claimant had suffered brain damage after undergoing
surgery at the defendant’s hospital. As she did not have
capacity, she had acted through a litigation friend to bring a
clinical negligence action. Liability was agreed with damages
to be assessed. The claimant regained capacity and entered
into a conditional fee agreement to cover the assessment of
quantum. The agreement stated that she was responsible
for giving her solicitors sufficient instruction to enable them
to perform their work, and that, if the agreement ended
early, the solicitors reserved the right to require her to pay
their charges and any counsels’ fees. Two years later, the
claimant lost capacity. Her solicitor was appointed as her
receiver and acted as her litigation friend. The proceedings
were settled three years later. The solicitors submitted their
bill of costs to the defendant. The defendant’s case was that
the conditional fee agreement had automatically terminated
as a result of the claimant’s loss of capacity, leaving her
solicitors without a retainer. A costs judge accepted that
argument. The court below allowed the claimant’s appeal,
finding that her supervening incapacity had not frustrated
or otherwise terminated the conditional fee agreement,
especially as it had been entered into in the knowledge that
she had fluctuating capacity.
The defendant submitted that the decision was contrary to
the principle in Yonge (1910) that supervening incapacity
terminated an agent’s authority. It also asserted that a
solicitors’ retainer was a personal contract in which the duty
to give instructions could only be discharged personally. The
claimant doubted the correctness of Yonge, and maintained
that even if a client had a general duty to provide instructions
personally, that duty could not have been intended in this
case, where the solicitors had foreseen that their client
might lose capacity again.
“(The claimant’s)…supervening incapacity had not rendered the retainer incapable of performance; it had only given rise to a short delay pending appointment of a receiver”The Court of Appeal held that the judge had been right to
decide that the claimant’s incapacity did not terminate the
conditional fee agreement. There was much to be said for
re-examining the Yonge principle and related authorities:
it was potentially unfair and unsatisfactory for a client’s
supervening incapacity automatically to terminate a
solicitor’s authority to act on their behalf, thereby exposing
the solicitors to risk of liability to other parties for breach
of warranty of authority at a time when they were unaware
of their client’s incapacity, and depriving them of authority
to protect their client’s position after they became aware
of it. However, the present appeal was narrowly focused
and did not require such an examination. The issue was
whether the conditional fee agreement had been terminated
by frustration when the claimant became unable to give
instructions, causing the retainer to become incapable
of performance. That question could be resolved on the
assumption that Yonge remained good law. The fact that
a solicitor’s retainer was a personal contract did not mean
that instructions generally had to be given personally. In any
event, whatever the general position, the parties to this case
must have contemplated that the claimant might become
incapacitated again and that instructions would need to be
given on her behalf. Therefore her supervening incapacity
had not rendered the retainer incapable of performance; it
had only given rise to a short delay pending appointment
of a receiver. A further reason why the frustration allegation
had to fail was that, even if the respondent had been under
a duty to provide personal instructions, the situation was
covered by the terms of the conditional fee agreement,
which entitled the solicitors to end the contract and require
the claimant to pay their basic fees.
A CFA also came under scrutiny in Cox v Woodlands Manor
Care Home Ltd [Lawtel 28/01/2015]
The appellant/claimant had been injured at work and sought
to claim against the respondent/defendant, her employer.
She had been introduced to a firm of solicitors and wanted
them to act for her, but had legal expenses cover as part of
her household insurance. She was advised that the legal
expenses insurer was likely to require her to use a panel
solicitor up to the issue of proceedings. She signed a CFA
but also made a claim on the insurance. A solicitor from
the firm visited the claimant’s home where she signed the
CFA, because her injuries made that more convenient than
visiting the solicitors’ office. The insurer confirmed that she
would have to use a panel solicitor until proceedings were
issued. Before that confirmation the solicitors had sent a
pre-action protocol letter and attended on a witness. The
claim was settled for £100,000 and costs on the standard
basis. The defendant argued that the claimant was not liable
to pay her solicitors since the CFA was unenforceable under
the Cancellation of Contracts made in a Consumer’s Home
or Place of Work etc. Regulations 2008. The CFA was a
contract for the supply of services within Regulation 5 and
the claimant was a consumer and the solicitors a trader.
The defendant contended that the CFA was made “during a
visit by the trader to the [claimant’s] home” because, as was
admitted, no notice of the right to cancel had been served
under Regulation 7. A costs judge held that the CFA had
not been “made” when it was signed because there was no
intention to create legal relations until the position with the
legal expenses insurer had been confirmed. A judge allowed
the defendant’s appeal holding that the fact that the CFA
might have ceased to operate, if the insurer agreed that the
solicitors could act, did not prevent it being legally effective
when signed.
“…the CFA had been “made” for the purposes of the regulations when it had been signed”Dismissing the claimant’s appeal, the Court of Appeal held
that the judge was right that the CFA had been “made” for
the purposes of the regulations when it had been signed. It
was wrong to say that there had been no intention to create
legal relations. It was clear that the claimant was legally
committed. The CFA was subject to a condition dependent
on the possibility of funding from the legal expenses insurer.
It was possible that the condition was that the CFA would
not take effect until the insurance position was clarified,
but it was more likely and more consistent with what had
happened that the condition was that the CFA would
terminate if the insurer gave its consent to the solicitors
acting. The claimant had no control over the fulfilment of
either condition and no further action by her was necessary.
Even if the obligations were not immediate, the agreement
was made when signed. That was correct as a matter
of law and also consistent with the policy behind the
regulations. That was to protect consumers in their homes
from pressure that operated at the moment of decision.
That purpose would be rendered more difficult to achieve
if the contract was found not to be made at that point. The
costs judge’s decision was not one of mixed fact and law
with which the judge should not have interfered on appeal.
There was no dispute as to the primary facts including the
parties’ intentions. The question of when the claimant was
legally committed was one of law to which there could only
be one answer. The judge had been entitled and obliged to
reverse the costs judge’s decision and hold that the CFA
was unenforceable.
From within GreenwoodsSuccessful defence of a multi party ‘slam on’ claim by employing telematics and accelerometer data.
PB and others v SJ and others (The County Court at
Manchester 16 January 2015).
This claim involved seven claimants: a driver and six
passengers involved in a road traffic accident on 5 January
2013. All claimed damages for personal injury and the first
claimant claimed special damages for credit hire and vehicle
storage.
The claimants’ case was that their stationary or near
stationary motor vehicle was positioned in the right hand
lane on Oldham Road and was attempting to turn right into
Grafton Street when the defendant negligently drove her car
into the rear of the their vehicle.
The claims were defended on the basis that the driver of
the claimants’ vehicle deliberately induced a “slam on” style
collision, in the left hand lane of the road, in order for them
to bring dishonest insurance claims. It was also alleged that
two of the claimants were not present at all (although on this
point the judge found against the defendant).
The key to the success of this defence was the evidence
of an independent witness. The judge found him to be
credible and accepted his evidence that there was no
reason whatsoever why the motor vehicle occupied by the
claimants had to brake suddenly other than to allow the
car behind it to crash into it and thereby allow the vehicle
occupants to pursue personal injury claims. The witness
was a driver and was adamant that both vehicles were in
the left hand lane as opposed to the right-hand side of the
road as suggested by the claimants.
He was also in a prime position to see the claimants vehicle
park up and to see the driver and a passenger swap
positions, although the judge held that he was mistaken that
there were only five people in the vehicle.
This contrasted with the view formed by the judge about
the credibility of the claimants and in particular the second
and seventh claimants. He noted that the second claimant
clearly had a much better grasp of English than he sought
to convey in the witness box and he came to the conclusion
that he was lying to the court about his knowledge and
understanding and abilities to communicate in English. The
seventh claimant spoke English without the benefit of an
interpreter and was the last claimant to give evidence. It
appeared to the judge that in giving evidence last she was
attempting to infill the inconsistencies that had been raised
in cross-examination of previous claimants.
A number of the claimants had indicated they had lost
time from work as a result of the accident but produced
no documentary evidence despite an allegation of fraud
against them.
The claimants’ vehicle had been fitted with a ‘black box’,
which vitally provided accelerometer data. When that had
been interrogated, none of the claimants were able to
explain why the vehicle had been stationary in the road
some 30 minutes or so before the accident. This was also
inconsistent with the claimants’ suggestion that they had set
off from the first and seventh claimants’ home and that they
were going to meet friends at a pub and yet none of them
had obtained details of where to meet or even better the
name of the pub. The data also revealed that the claimants
had travelled up and down Oldham Road on no fewer than
two occasions in order to find what started off as friends
but then became a friend and were passing the accident
scene for a third time when the incident occurred. None
of the claimants mentioned this in their witness statements
and no explanation was given for these omissions which
only became relevant once the black box data from the
claimants’ vehicle had been obtained and its detailed
movements were known.
The judge’s interpretation of the data from the ‘black box’
was that the claimants’ vehicle decelerated from 24 to
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: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.
www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk
Contact UsFor more information please contact:
Geoff OwenLearning & Development Consultant
T: 01908 298 216
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27 miles an hour to stationary or very nearly stationary in
approximately two seconds. That amounted not to slow or
gradual braking but sudden braking that causes a vehicle
to slow down suddenly albeit not instantaneously. The
claimants’ witness as to the interpretation of the ‘black box’
data was an employee of the Part 20 defendant, which had
settled the defendant’s claim prior to the commencement of
the trial. At paragraph 10 of his witness statement he had
referred to a gradual braking movement but under cross-
examination he stated that what he had meant was that the
brake pad had been applied to the drum of the wheel at a
constant pressure, causing a constant deceleration.
The judge accepted that all seven claimants on the balance
of probabilities suffered some injury but given the various
inconsistencies in their hospital entries and the medical
reports these injuries were relatively minor. He was also
satisfied that on the balance of probabilities this was a
slam-on collision deliberately contrived in order that seven
claimants could pursue a claim for personal injuries arising
out of the accident.
If damages had been awarded to the claimants then an
appropriate award would have been £750 each but he
dismissed all of the claims, including the claim for credit
hire and storage and recovery charges. The miscellaneous
expenses claims were abandoned prior to the trial
commencing.
In the light of those findings an award of indemnity costs was
made against all seven claimants in favour of the defendant
and repayment of the interim payment.
For further details please contact:
Karen Mann
T: 020 7462 3469
