Legal Watch:Personal Injury10th July 2015Issue: 069

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 - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• RTA/liability

• Public liability

• Jurisdiction

• From Plexus Law Scotland

RTA/liabilityIn previous editions of this periodical we have noted the steady increase in the number of reported cases involving accidents between vehicles and pedal cycles. We have another example in MacLeod (Protected Party) v Commissioner of Police for the Metropolis (2015) EWCA Civ 688 which is also a reminder of the tendency of judges to prefer the evidence of factual witnesses to that of experts.

The claimant/respondent had been cycling home when he was hit by a police car responding to an emergency call. The accident happened at a crossroads junction in London. It was dark and there had been some light rain. The speed limit was 30 mph and the police car approached the junction from the south at 55 mph. The claimant, who was in his late 50s, was wearing a high-visibility jacket, and his bike was brightly coloured with its lights illuminated. There was contact between the car’s near side wing and the bike’s handlebars. The claimant was thrown forward and collided with the roof lights and rear window of the car. He sustained very serious injuries, including head injuries, and was unable to give evidence regarding the accident.

The dispute centred on the direction from which the claimant had approached the junction. The case advanced on his behalf was that he was approaching from the south. The defendant/appellant alleged that the claimant had been travelling west to east at some speed. The joint accident reconstruction expert evidence suggested that at least the front wheel of the bike had been pointing in the same direction as the car. The judge found the evidence of two of the independent witnesses to be reliable and compelling. One of them said he saw the claimant travelling south; the other heard the accident when walking on the west to east road and said that she had not seen the claimant on that road. The judge concluded that the claimant was cycling from the south when he was hit from behind by the police car. The police car had been driving too fast, without the degree of care and skill which would have been reasonable in the circumstances.

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The defendant appealed and argued that the judge had erred in (i) making findings of fact against the weight ofthe evidence; (ii) rejecting the possibility of an alternative scenario, based on the expert evidence, that the claimant could have entered the junction from the west at a right angle to the police car, turning his wheel left before impact totrytoavoidacollision;(iii)findingthattheclaimanthadturned to his right before the collision, when there was no evidencetosupportsuchafindingandsuchatheoryhadnot been part of his case at trial.

Dismissing the appeal, the Court of Appeal held that there was always a need to be careful to distinguish evidence from accident witnesses of what they actually saw from evidence about what they thought might have happened. The judge had been alert to that danger. He had been entitled to rely on the evidence of the two independent witnesses. The inference he drew that the claimant had approached the junction from the south was a very powerful one. He was also entitled to conclude that there was nothing in the theory that it would have been impossible for the bicycle to have been hit from behind as the police car was steering to the right without the rear of the bicycle being damaged. The judge was not obliged to accept the expert evidence; he was entitled to apply his common sense and experience when evaluating the totality of the evidence, and it was entirely possible for the accident to have occurred as contended for by the claimant.

‘The judge was not obliged to accept the expert evidence; he was entitled to apply his common sense and experience when evaluating the totality of the evidence…’

There was nothing in the defendant’s second ground. The alternative theory that the claimant had entered the junction from the west to east road, but had executed a sudden emergency manoeuvre by turning his handlebars to the left was only advanced at the trial by way of cross-examination, and had not previously been considered by the experts. It was not a realistic explanation. For that alternative theory to arise, the claimant had to have been emerging from the east to west road. The judge was entitled to place reliance on the witness evidence as providing a strong inference that that had not occurred.

The judgemade no finding that the claimant had turnedto his right before the collision. There was ample evidence to show that he and the police car were on convergent courses. Anyone who had ridden a bicycle or driven a car on London’s roads knew that subtle changes of direction could makethedifferencebetweensafetyanddisaster.

The defendant’s appeal was on the facts. Where a trial judge had reached a conclusion on the primary facts, it would be only in a rare case, such as where that conclusion was one which (a) was based on a misunderstanding of the evidence; or (b) no reasonable judge could have reached, that the instant court would interfere with it. The defendant had failed to make out any such objection to the judge’s findingsoffact.Therewasampleevidencewhichthejudgehad fully understood and on which he could properly rely to makehisfindings.

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Public liabilityThe case of Dunnage v Randall and another (2015) EWCA Civ 673 looks at the impact of a defendant’s mental disorder on his liability for causing accidental injury to another.

The appellant/claimant appealed against a decision that he was not entitled to damages in negligence in respect of injuries which he sustained when he attempted to prevent hisuncle, thefirstdefendant/respondent, fromsettingfireto himself.

The uncle had poured petrol over himself and the claimant had unsuccessfully attempted to prevent him from igniting it. Theunclediedandtheclaimantsufferedextremelyseriousburns to his face and body. The uncle was subsequently diagnosed as having suffered from florid paranoidschizophrenia. The incident took place in the uncle’s home and there was an issue about whether it was covered by a household insurance policy under which the second defendant/respondent insurer had agreed to indemnify the uncle in respect of accidental bodily injury to any person.

Two psychiatric experts were instructed. They filedan agreed joint statement, concluding that the uncle’s delusional state would have been so overwhelming as to render him incapable of formulating any rational alternative action and that he had not been in control of his actions. Thejudgeatfirst instanceheldthattheextremenatureofthe manifestation of his mental illness meant that the uncle had not been acting voluntarily and therefore owed no duty of care to the claimant. The claimant appealed and the issue before the Court of Appeal was whether a person was liable innegligencewherehewassufferingfromamentaldisorder.

Allowing the appeal, the court held that there was no principle which required the law to excuse a defendant from liability in negligence where he failed to meet the normal standard of care partly because of a medical problem. The courts had consistently and correctly rejected the notion that the standard of care should be adjusted to take account of the defendant’s personal characteristics. The single exception in respect of the liability of children should not be extended.

‘It was only if the defendant could properly be said to have done nothing himself to cause the injury that he escaped liability’Onlydefendantswhosemedical incapacityhad theeffectof entirely eliminating any fault or responsibility for the injury could be excused. There was no reason for the law ofnegligencetodifferentiatebetweenmentalandphysicalillness. The actions of a defendant who was merely impaired by medical problems, whether physical or mental, could not escape liability if he caused injury by failing to exercise reasonable care. To say that a medical condition entirely eliminated any fault or responsibility for the injury simply meant that the defendant himself had done nothing to cause the injury, such as a person whose arm was holding a knife and who was overcome by another forcing him to stab a victim. It was only if the defendant could properly be said to have done nothing himself to cause the injury that he escaped liability. That approach avoided the need formedicalwitnessestobecomeengagedwithdifficultandundefined terms such as “volition”, “will”, “free choice”,“consciousness”, and “personal autonomy”. Thoseformulations emanated from the rules applicable to insanity and automatism as defences in criminal law and were not helpful in the circumstances.

In the instant case, there had been a troubling proliferation of terms in play, in the judgment and in the experts’ evidence. Thewords “involuntary” and “irrational” had almost beenused as synonyms. For example, the judge concluded that so long as incapacity altogether removed rational

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motivation there was no liability. It was not helpful to refer to cases which considered the position when, for example, the defendant lost control of his actions, lost the power of choice, ceased to act voluntarily, or lost consciousness. The judgeatfirstinstancehadheldthatthedefendant’sabilityto think and act rationally had been eliminated. However, no one would suggest that someone should be excused from liability for negligence if they acted irrationally. The uncle had been under a duty of care and the real issue was whether, unwell as he was, he had breached that duty by failing to measure up to the objective standard of care. The experts had said that the uncle lacked control over his actions, but they meant that he did not have rational control. They were not saying that he had no physical control. His mind, although deluded, directed his actions. His disease did not excuse him from needing to take the care of a reasonable man unless he was not acting or was completely free of any fault, which was not the case. The judge’s conclusion had not been open to him. The uncle had breached his duty of care and was liable to the appellant in negligence.

The liability was covered by the insurance policy. The policy excluded cover for any acts which were wilful or malicious. However, the injuries were truly accidental and could not have been wilful or malicious because the uncle had clearly lost control of the ability to make choices and could not be said to have intended to injure the appellant.

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JurisdictionIn Legal Watch: Personal Injury 8 we reported the firstinstance decision in Brownlie v Four Seasons Holdings Inc. The case has now been before the Court of Appeal and is reported at (2015) EWCA Civ 665.

The claimant/respondent had been injured and her late husband killed in a road traffic accident while on asightseeing excursion in Egypt. They were both British citizens resident in the UK. The excursion had been arranged by the concierge of the hotel they were staying at. The claimant brought proceedings in the UK to recover damages in contract and in tort. Her three tort claims were in respect of her own injuries, her loss as a dependent of her husband, under the Fatal Accidents Act 1976, and for the lossanddamagesufferedbyherhusband,inhercapacityas executrix of his estate. She was granted permission on a without notice application to serve the proceedings on the appellant/defendant hotel company in Canada.

The defendant successfully applied to set that permission aside. The master declared that the court had no jurisdiction to try the claim. The claimant successfully appealed that decision. The issues on the further appeal were whether the judge(i)haderredinfindingthattheclaimanthadagoodarguable case that the defendant was the other contracting party to the contract for the excursion; (ii) had erred in holding that the claimant had a good arguable case that the contract for the excursion was made in England; (iii) should have held that the damage was sustained in Egypt.

Allowing the appeal in part, the Court of Appeal held that the court had jurisdiction if a “good arguable” case wasshown that the case fell within one of the jurisdictional gateways in the CPR. To establish whether a good arguable case had been made out that the claim fell within one of the gateways, the court had to apply what had become known asthe“Canada Trustgloss”*.Thejudgehadnotexceededthe function of an appellate tribunal. He was in as good a position as the master to form a view as to whether there was a good arguable case and whether the Canada Trust

glosswassatisfied.Inthosecircumstances,hewasentitled,and bound, to consider whether the master’s decision was wrong. He was not reviewing the exercise by the master of a discretion. The judge had therefore correctly applied the Canada Trust gloss. He was entitled to give the defendant’s evidence little weight because it did not address the question of the identity of the other contracting party when the respondent booked the excursion. The defendant’s appeal on that point was rejected.

*[The standard of proof is that of a good arguable case.In this context the phrase good arguable case connotes that, on the material available, one side has a much better argument than the other]

The judge approached the issue almost as a matter of horn-book law. There was no evidence regarding foreign law and he was therefore bound to apply English law. The hotel brochure on available excursions was an invitation to treat; asa result theclaimanthad tomakeanoffer tobookanexcursion and, for there to be a binding acceptance, the concierge had to accept. The contract for the excursion was made at the place where the words of acceptance were received. When the place where a contract was formed was in issue, the court had to do its best. The defendant’s submission that the Canada Trust gloss could never be satisfied was rejected. A trial judge might well have nodirect evidence and have to draw inferences. The court had to consider what was likely to have happened. The claimant had had to approach the concierge and set out her requirements. The defendant did not suggest that it was the concierge who then made suggestions to the claimant. The concierge merely responded to her proposals, which meant that the concierge’s role was to accept those proposals. A good arguable case had been demonstrated and the Canada Trust glosswassatisfied.

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‘The tort jurisdictional gateway should be interpreted consistently with Rome II…’The issuewaswhether theclaimant’s tortclaimssatisfiedthe remainder of CPR PD 6B – 3.1(9)(a) which permitted serviceoutofthejurisdictionofclaimsmadeintort“where(a) damage was sustained within the jurisdiction”. Thedefendant argued that the claimant could not meet that requirement because it covered only direct loss or injury. The tort jurisdictional gateway should be interpreted consistently with Rome II, and no distinction should therefore be based on the fact that the tort gateway talkedabout “damage”,whichordinarilywouldmean“anydamage”ratherthan“thedamage”or “thedirectdamage”.Theclaimant’spersonalinjury claim and her claim as executrix of her husband’s estate had to be brought in Egypt. However, that conclusion did not apply to her loss as a dependent under the 1976 Act, to which English law was applicable. The instant court could, in the absence of proof as to Egyptian law, apply the presumption that Egyptian law was the same as English law. The defendant’s argument that the claimant had failed to show a completed cause of action in tort because she had not adduced evidence as to Egyptian law was rejected.

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From Plexus Law ScotlandProposed changes to the limitation period for historic abuse claimsIn previous editions of Legal Watch: Personal Injury we have followed the development of historic abuse claims. As recently as last week we reported the case of A v Trustees of the Watchtower Bible & Tract Society and others in which the claimant brought an action for damages for personal injury arising out of sexual assaults committed by a ministerial servant of a religious society when she was a child. Under both English and Welsh and Scottish law the vast majority of these claims are, by their very nature, statute barred. An issue which the judge must therefore deal with is whether or not he should exercise his discretion to disapply the primary limitation period of three years, under S33 Limitation Act 1980 (England and Wales) or S19A Prescription and Limitation (Scotland) Act.

In recognition that “the circumstances of historical child abuse cases are sufficiently unique from other cases involving personal injury” the Scottish government has started a consultation in regard to a proposal to remove the three year limitation period in such cases. This would take away a defender’s limitation defence and the requirement for the pursuer then to argue successfully for S19A to be applied. The rationale for this approach is that in cases of this type, many pursuers will still be reliant on evidence whichmaybedifficulttoobtainorofinsufficientqualitytoprove their cases. Limitation is seen as nothing more than an unnecessary additional hurdle. Courts will still “need to hear the evidence and hear from witnesses which is likely to include the pursuer” in an adversarial process “which may prove challenging, emotional and difficult for anyone who raises an action”.

These proposals will no doubt find favour with pursuers.The issue for defenderswill be the absenceof a specifictest as to whether or not a fair trial of the issues is still possible after the passage of time. Will trial judges adopt

asufficientlycritical,evensceptical,approachwherepoorquality evidence relates to events that took place many years ago? These concerns are increased because of the ever expanding definition of vicarious liability where thenecessary relationship of employer and employee has been extended to relationships akin to that of employer and employee.

The consultation is open until 18 September 2015.

For further information please contact Cameron McNaught.

E: Cameron.McNaught@plexusscotland.co.uk

T: 0844 245 4802

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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