Legal Watch:Personal Injury12th March 2015Issue: 055

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

There is a limited number of seats still available for this event, so to avoid disappointment book your place now.

In this issue:

• RTA liability/ex turpi causa

• Damages

RTA liability/ex turpi causaThe case of Flint v Tittensor (1) and MIB (2) (2015) EWHC 466 (QB) is the latest in a series of claims in which defendants have tested the boundaries of the defence of ex turpi causa.

The claimant claimed that he had been out for the evening and had become separated from his group late at night when an incident occurred in which he was thrown form the bonnet of thefirstdefendant’scar.Hismobilephonewasoutofchargeandhewastryingtoborrowaphoneinordertomakeacall.Hehadapproachedthefirstdefendant,whowasinhisparkedcaroutsidearestaurantandaskedifhecouldusehisphone.Theclaimant alleged that thefirstdefendanthad refused inaggressiveterms,whereuponhehadslammedhishandonthecarbonnet,causingadentandthefirstdefendanthaddrivenforwardtowardshim,forcinghimontothebonnet.Accordingto the claimant, the first defendant had then reversed anddrivenforwardagain,shakingthewheeltothrowhimoff.Hehadfallentothegroundandsustainedsevereheadinjuries.

The first defendant’s case was that the claimant hadapproached him in an aggressive manner and had challenged himtogetoutofthecar.Theclaimanthadputhishanddownhistrousers,causingthefirstdefendanttobelievethathehadaknife.Heclaimedthathehadedgedforwardwithoutmakingcontactwiththeclaimant,butthattheclaimanthadclimbedonto the bonnet and began punching the windscreen while screamingabuse.Thefirstdefendantclaimedtohavebeeningenuine fear for his life and said that he had reversed before driving forwards in an attempt to dislodge the claimant from thebonnetofhiscar.

At the time of the incident, the claimant had been drinkingandhadahistoryof aggressivebehaviour.The issueswerewhether the claimant had proved a case in trespass to the person;whether thefirstdefendanthadacted inreasonableself-defence;and,ifthefirstdefendantfailedtoestablishthathisconductwas lawful,whether theclaimwasnevertheless

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barredonpublicpolicygroundsbecauseoftheclaimant’sownillegalconduct.

The High Court judge held that the first defendant haddeliberatelyoverstated theeffectonhimof theclaimant’sbehaviour and tried to hide the truth of his own response toit.Itwasobviousthatwhenhedecidedtodriveforwardsat speed with the claimant clinging to his bonnet and to swerveso thathewouldbe thrownoff, theclaimantwasinmuchmoredanger thanhewas.Hisstatement thathebelieved the claimant to have a knife was invented between hisfirstandsecondpoliceinterviews.Althoughtheclaimanthadstartedtheconfrontationwithhisaggressiveconduct,hehadprovedthathewasinjuredbythefirstdefendant’sdeliberateacts.Hehadnotbehavedinawaywhichcausedthe claimant to fear either for his life or that he was in danger ofsufferingreallyseriousharm.

The deliberate application of potentially lethal force to the claimantclearlyinvolvedhostiletouchingandwasabattery,unlessjustifiedasreasonableself-defence.

Thefirstdefendanthadnotexplainedwhyhedidnotsimplyreverse away from the claimant instead of driving towards him. Driving towards the claimant was not a defensiveactionbecausethefirstdefendantwasnotinanyphysicaldangerfromtheclaimant.Itwasnotreasonableforhimtobelieve that it was necessary for him to use force to defend himself.Theuseofthecarwasthereforenotareasonableorproportionateactandthedefenceofself-defencefailed.

‘…where a person responded to provocation in a way which far exceeded what was reasonable…he was not absolved from liability on public policy grounds’

Althoughthedentingofthefirstdefendant’scaramountedto minor criminal damage, the first defendant was guiltyof far more serious offences by his actions against theclaimant. Although the Crown Prosecution Service hadnotbroughtchargesagainst thefirstdefendant, theyhadapproached the case on the basis of the criminal standard of proof and decided that they would be unable to disprove hisaccount.However, itwasnotnecessary foraparty tohave been convicted of a crime before the civil court was able to act on the basis that he was in fact guilty of that crime. Any rule of lawwhich operated to excuse seriousandunlawfulviolencetoanyextentwasnotonewhichwasobviously justifiable on public policy grounds. Therefore,where a person responded to provocation in a way which far exceeded what was reasonable and was a seriouscrimeforthatreason,hewasnotabsolvedfromliabilityonpublicpolicygrounds.Whereaclaimantwhohadhimselfcommitted criminal conduct sustained injuries because a thirdpartyvoluntarilycommittedadifferentkindofseriouscrimeagainsthim,hisconductdidnotinlawcausethoseinjuries for the purpose of the particular rule of causation applicable to self-defence. The first defendant’s action inusing the car as a weapon had therefore broken the chain ofcausation.

Another case in which the defence of ex turpi causa had been dismissed was Delaney v Pickett.However,thecourtfound that the claimant was not entitled to pursue his claim against MIB because of the operation of Clause 6(1)(e)(iii) of the Uninsured Drivers’ Agreement 1999. A High Courtjudge subsequently ruled that the clause was in breach of theUK’sobligationsunder theFirst, Second and Third EU Motor Directives and that accordingly the claimant was entitled to Francovich damages. The case has now beenbefore theCourt of Appeal and is reported asDelaney v Secretary of State for Transport (2015)EWCA Civ 172.

Thedefendant’sappealwasdismissed.ThecourtheldthatArticle 1.4 of the Second Directive,eitherreadinisolationorin conjunction with Article 2.1,theFirst Directive and the Third Directive,imposedobligationsonmemberstatesinrespectof damage caused by vehicles in relation to which a valid policyofinsurancewastakenout,butwherethatpolicywas

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subsequentlyavoidedbytheinsurer.AraftofEUdecisionsmade it quite clear that a situation could not arise where the insurer’savoidanceofliabilityleftavictimwithoutaremedy.The principal obligation to compensate lay with the insurer under Article 2.1 of the Second Directive, but if that was not satisfiedthenthenationalinsureroflastresort,whichintheUKwastheMIB,hadtostepinunderArticle1.4.ThustheMIB had to pay compensation in circumstances where the insurer,forwhateverreason,includingtheavoidanceofaninsurance policy for misrepresentation or non-disclosure by theinsured,owednoliabilityinrespectofthevictim’sclaim.That general rule was subject only to a number of very limited exceptionsinvolvingthevictim’sownblameworthyconductandthecaselawmadeitclearthatthoseexceptionswerelimitedtothoseexpresslystipulatedinArticles1.4 and 2.1. It was a basic principle of community law that derogations andexclusionsweretobeconstruedrestrictively.Therewasnoabilityforamemberstatetocreatespecificexceptionsthat were not mentioned in Article1.4 or were not otherwise justifiableonpublicpolicygroundsaccordingtoestablishedprinciplesofdomesticlaw.

The jurisprudence therefore made it quite clear that Articles 1.4 and 2.1 of the Second Directive required member states to ensure that compensation was paid in all circumstances savethoseexpresslysetoutasexclusionswithinthetextofthoseprovisions.

‘The breach was a serious one and arose in circumstances where the UK’s room for manoeuvre under the directives was closely circumscribed...’The exclusion of liability under Clause 6(1)(e)(iii) was inconsistentwith,andundermined,thespecificexceptionspermitted by Articles 1.4 and 2.1. The UK was therefore in plainbreachofitscommunitylawobligations.

The breach was a serious one and arose in circumstances wheretheUK’sroomformanoeuvreunderthedirectiveswascloselycircumscribed;itdidnothaveawidediscretion.Itsobligationsunderthedirectivesandtheirrelevantconfineswerequiteclearand,intheabsenceofknowingtheactualreasonforthepolicydecision,thebestthatmightbesaidwasthatthesecretaryofstatedecidedtoruntherisk,whichwassignificant,knowingof itsexistence.Thebreachwassoserious,thatcompensationmustbepaidtotheclaimantunder the Francovich principle.

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DamagesThe case of Seers v Creighton & Son Ltd [Lawtel 5/03/2015] is on its own facts but sees a court dealing with a number ofissuesthatarisequiteregularlyinpersonalinjuryclaims.

The claimant was 43 years old. He had suffered a lowerback injury whilst lifting a heavy prefabricated staircase at work. He continued in his employment for some timein a supervisory role. The claimant’s back problemsworsened; he had an operation but he never worked for the defendantafter that.Theclaimanthada furtheroperationand started employment as a minibus driver at a fraction ofhisoriginalpaywiththedefendant.Hestartedfull-timework but had to change to part-time work. A consultantspinal surgeon reported that even though there had been a great improvement, the claimant’s current state waspermanent and that further treatment might be required.The long-term prognosis was that the claimant would remaindisadvantaged forwork.Even thoughhewasonlyworking part-time he would continue to have lower back painuntilretirementandwouldrequirefurtherinterventions.The claimant had moderate depression and was prescribed anti-depressants. The expert psychiatric evidence wasthat the claimant would benefit from cognitive behaviourpsychotherapy and that an increase in the level of anti-depressantsshouldbeconsidered.Thedefendantadmittedliability.Thepartiesagreedafigureof£25,000forgeneraldamages for pain and suffering and loss of amenity. Thecourtwasrequiredtoassesstheremainingdamages.Themain dispute was over loss of earnings. An employmentconsultant’sevidencewasthattheclaimantcouldnolongersitforlongperiodsatatime,orbendorkneelandindicatedthat he was limited to sedentary employment which did not involverepetitiveliftingorexposuretodamp.

The defendant submitted that:

(1) The claimant had left voluntarily and could have continued in his employment. It was argued that the claimant hadreturnedtoworkafterhisfirstoperationandthatatthetimethings were quiet in work terms and that the claimant had

been asked whether a package would be available if he weremaderedundant,afigureof£8,000wasagreedandthe claimant was one of a number of employees being made redundantforeconomicreasons.

(2) the claimant had failed to mitigate his loss. It wasargued that the claimant had worked for the defendants in a responsible role despite his injury and while waiting for an operation that could possibly have significantlyimproved his condition and he should have been able to take on similar work instead of low-paid part-time work. The High Court judge held that the £25,000 agreed forgeneral damages was the appropriate level for a back injury in the moderate range and a psychiatric injury at the lower end.

It was inconceivable that the claimant would have voluntarily left his employment and the salary he had been receiving for an£8,000redundancywhenhehadnojobtogotoandhehadbackproblems.Thetruepositionwasthattheclaimanthad been told that if he did not accept the redundancy packagehewouldbesacked.Therealitywasthatwhiletheclaimant’spositionhadimprovedhehadnotfullyrecoveredandwasunfitforanyheavy-liftingwork.Hewasclearlynotinapositiontoseekworkthathewassuitedfor.Ifhehadbeenabletofindworkforsimilarpayhewouldhavedonesoandhewouldnothavetakenajobdrivingaminibus.Hehadtakenonadministrativedutiesintheminibuscompany.Hewas required to do more hands-on work with that company and was therefore unable to do full-time work and had revertedtopart-timework.Ifhehadnotbeenmitigatinghislosshewouldnothaveworkedfulltime,whichwasbeyondhiscapacity.Thedefendanthadnotdischargedtheburdenofproofplaceduponit.

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‘…the claimant’s current work paid £7,500. The…figure underestimated the claimant’s capabilities…His residual working capacity was £17,000’The court accepted the defendant’s evidence thatemployees’salarieshadnotbeenincreasedfromwhentheclaimant left its employment as turnover had decreased over thelastfewyears.Therefore,theclaimant’slossofearningstodateshouldnot takeaccountofwage increases.Astoloss of future earnings, the claimant’s current work paid£7,500.Aproperassessmentcouldbemadeonamultiplier/multlipicand basis. The £7,500 figure underestimated theclaimant’s capabilities. He was suffering from a disabilitybut he had shown that he had pride and wanted to provide forhisfamilyandtherefore,hewouldtakeallthenecessarysensiblesteps.Hisresidualworkingcapacitywas£17,000.It was appropriate to take that figure one year from thedateof the instanthearing.On theevidence theclaimantsatisfiedtheconditionstoberegardedasdisabled,namelythat he had an illness or a disability that had lasted for over one year, that substantially limited his ability to carry outnormalday-to-dayactivities,andaffectedthetypeofpaidworkhecoulddo.

The claimant was also awarded special damages under the followingheads:futurecare,gardening,decoratingandDIY,medication and loss of congenial employment. The totalawardincludinginterestwas£475,042.50.

CommentFrom the limited details we have about this case it appears that the judge was prepared to adopt the approach to calculating the future earnings claim advocated in the notes to Ogden 7.However, it canbeseen that for thesecond

partofthecalculation,towhichthelowermultiplierwouldbeapplied,hetookaconsiderablyhigherfigureforresidualearningcapacitythantheclaimant’sactualearningsatthedateofthehearing.

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.

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