News Category 2
The Court of Appeal on the rules of the road, and of road traffic litigation - Sebastian Bates, Temple Garden Chambers
23/01/23. In Taylor v Raspin [2022] EWCA Civ 1613, the Court of Appeal gave guidance on reasonable driving and the adjudication of road traffic litigation.
As William Davis LJ summarised at [2]–[3], Mr Raspin had ridden his motorcycle along a major road, approaching a junction with ‘a minor road on his right’. Ms Taylor had pulled out from the minor road and turned right, colliding with him. She ‘had looked right, left and right again before she pulled out from the minor road’, but UTJ Ward, sitting at first instance, considered that (i) ‘she should have looked left again as she continued to pull onto the major road’ and (ii) ‘[h]er failure to do so was causative of the collision’.
Ms Taylor appealed on both points. With respect to the first, the judgment records (at [21]) that it was ‘accepted that a driver emerging from a minor road onto a major road owes a continuing duty of care to traffic on the major road’. However, Ms Taylor submitted ‘that, in the circumstances of her case, this did not require her to look left for a second time’.
Conclusion and Comment
The appeal was dismissed. William Davis LJ explained at [24] that he had ‘no difficulty in rejecting the first ground of appeal’. Given that Ms Taylor had been ‘moving out [at slow speed] onto a road on which a regular flow of traffic was to be expected where the view to her left was affected by the bend in the major road’, she had an increased ‘need to check for a second time that it was safe to continue into the far carriageway of the major road’. He regarded ‘the notion that it was unforeseeable that a vehicle would be exceeding the speed limit to a significant degree on the major road’ as‘not sustainable’. He stated (at [25]) that he did not accept that this impermissibly amounted to ‘a duty [. . .] to keep the major road clear’.
At the trial, an expert had indicated that ‘approximately 50% of drivers would consider that it was reasonable to emerge onto a major road in the circumstances facing the defendant’: see [21]. William Davis LJ’s view (at [26]) was that this ‘could not be determinative of whether the defendant was in breach of duty’.
After rejecting the second ground of appeal as to causation at [28]–[32], William Davis LJ returned to the expert evidence at [34]–[35]. He observed, obiter, that UTJ Ward had overemphasised the expert evidence. The ‘central focus’ ought to have been the eyewitness accounts.
The Court of Appeal’s account of drivers’ continuing duty when emerging from minor roadscommends itself to all road users as well as those acting for them in road traffic litigation. Such advisers will also wish to be aware of the Court’s observations on expert evidence.
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When is adjournment appropriate in a high value personal injury claim? - Anisa Kassamali, Temple Garden Chambers
19/01/23. Benford v East and North Hertfordshire NHS Trust [2022] EWHC 3263 (KB) considered whether a trial should be adjourned on the assertion that the assessment of future loss and expense arising from the Claimant’s injuries was either impossible or so speculative that it would be unjust to the Defendant.
Background
The Claimant suffered brain damage around the time of her birth. The Defendant ran the hospital at which she was born. Liability for clinical negligence had been admitted by the Defendant for that brain damage, and the outstanding issue was quantum.
The Defendant submitted that the expert medical evidence on key issues would be too uncertain by the trial date for the Court to be able to make a fair judgment. There was a real risk that an assessment of damages on that date may be wrong. This was opposed by the Claimant on various bases, including that (1) the submission should have been made earlier, (2) in clinical negligence and personal injury claims, quantification of future loss always rests on prognoses by various medical experts, which involve an element of experience, expertise, speculation and uncertainty, and this case was no different, and (3) the burden of proof rested with the Claimant in any event, and so any uncertainty about any prognosis fell on her shoulders and not the Defendant’s (see [18]-[22]).
High Court decision
Ritchie J considered the Court’s power to adjourn proceedings at CPR 3.1(2)(b). He also noted the Court’s power to stay proceedings at CPR 3.1(2)(f).
He considered the specific facts of the case against the following factors, which he identified as relevant:
(1) The overriding objective of achieving justice between the parties.
(2) Whether the Defendant (or Claimant) will suffer prejudice by the trial going ahead.
(3) Whether the Claimant (or Defendant) will suffer prejudice by the trial being adjourned.
(4) The balance of the prejudice which may be suffered.
(5) The need for finality in litigation.
(6) The need for justice to be done without unreasonable delay.
(7) The conduct of the parties and in particular whether the Defendant (or the Claimant) has complied with the Court’s directions.
(8) The choices made by the parties on the date for trial and any consent orders made.
(9) Reasonable and fair allocation of the Court’s resources.
(10) The wishes of the parents who carry the burden of caring for the Claimant and running the litigation and being present at each assessment by experts.
(11) The alternatives to adjournment including (1) whether a stay or an adjournment for a shorter period would be fair and (2) whether different directions between now and the listed trial date would be sufficient.
On the facts of the case, Ritchie J held that the trial date should stand (although he extended the time for serve of the Defendant’s expert reports and counter schedule). In so doing, he made various observations which have broader relevance for practitioners operating in this area.
· As to certainty in relation to expert prognoses: “[m]aking awards for damages for future loss is an exercised upon a comparison between an estimate of what the ‘but for’ position would have been and the ‘future actual’ position will be. Both of those are crystal balls through which the judge has to look with the guidance of experts. Certainty is admiral (sic) but is often not achievable. Uncertainty is ever present in such assessments. The Courts are used to assessing probabilities.” [49]
· Consent orders in the proceedings to date: “As to the choices made by the parties on the date of trial, I have set out above that the parties agreed to the trial in 2023 one year and two months ago. When parties make serious choices like this in very high value brain injury litigation it seems to me that the general rule should be that they should stick to their choices.” [54]
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Time limits for the assessment of a CFA - Anisa Kassamali, Temple Garden Chambers
17/01/23. Menzies v Oakwood Solicitors Limited [2022] EWHC 3199 (KB) considered the approach to a solicitor’s deduction under a conditional fee agreement (“CFA”). On the particular facts of the case, the client was able to challenge the deduction 21 months after settlement of the underlying proceedings.
Background
The appellant Mr Dean Menzies (“the client”) suffered injuries in a road traffic accident. He instructed the respondent Oakwood Solicitors Limited (“the solicitors”) to pursue a claim for personal injury and entered into a CFA. The claim was ultimately settled and these proceedings considered the subsequent dispute between the solicitor and client regarding the calculation of sums payable to the solicitor under the CFA as set out in the latter’s Final Statute Bill.
The client did not dispute the Final Statute Bill at the time, but commenced proceedings more than 21 months later (represented by new solicitors). Costs Judge Rowley held at first instance that the claim was barred by section 70(4) of the Solicitors Act 1974 Act because it had been brought more than 12 months after payment of the bill...
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Case Summary: T v S - Helen Reynolds, Spencers Solicitors Limited
06/01/23. Case Name: T v S
Accident Date: 08/08/2019
Settlement Date: 19/07/2022
TOTAL GROSS SETTLEMENT: £31,000.00
Background & Liability
The Claimant aged 25, was involved in a road traffic accident, in which the Defendant failed to slow his vehicle and collided with the rear of the Claimant’s vehicle.
Liability was admitted by the Defendant’s insurers.
Personal Injuries
T worked in IT and was absent from work for 2 weeks following the accident. He saw his GP on many occasions and took pain killers.
Due to the symptoms, T was unable to play football, do the shopping, lift and carry his young child, do any of his hobbies or household chores.
Physiotherapy treatment was recommended, and the Claimant received extensive physiotherapy, and subsequently chiropractic treatment, however there were interruptions due to the Covid-19 pandemic.
Neck and shoulder symptoms resolved around 18 months post-accident and symptoms in the knees were attributed to the accident for 2.5 years.
However, 2.5 years post-accident and despite treatment, T continued to suffer with pain and a twitching sensation in his lower back with pins and needles in the left leg. An MRI scan was interpreted as normal. The Orthopaedic medical expert was unable to explain on the basis of orthopaedic cause and suggested that T was reviewed by a Rheumatologist.
T also suffered with significant psychological symptoms. He suffered with recurrent distressing memories and dreams of the accident. He would avoid travelling in a car as both a driver and a passenger and would not let his child in the car. T lost interest in some activities and felt detachment from others. T became irritable and angry on occasions, he had problems concentrating suffered disturbed sleep. T suffered with low mood and self-esteem, reduced appetite, lack of motivation, irritability and was tearful.
T did not drive for the first 3 months. Upon returning to driving, he was anxious and hyper-vigilant. He felt vulnerable and distrusted other drivers when it came to braking. He found he was compulsively mirror-watching. T avoided driving if he could and tried to rely on lifts.
Post-Traumatic Stress Disorder was diagnosed, and a course of psychological treatment was recommended.
The Claimant met the criteria for PTSD for 19 months (until the end of therapy) and subsequently suffered with an adjustment disorder, with anxiety and depressed mood.
The Psychological expert suggested that T would have the ability to overcome his symptoms with further treatment and driving lessons. A further 10 sessions of CBT with possibly EMDR was recommended along with a course of 6 advanced driving lessons, focussing on higher speed driving and motorways.
It was anticipated that the psychological symptoms would recede by the end of such treatment.
Upon disclosure of the medical evidence to date, and without evidence from a Rheumatologist, the Defendant accepted the Claimant’s Part 36 settlement offer.
Quantum
The Claimant aged 28 at the time of settlement, received an award of £31,000.00.
Estimated breakdown:
General damages £23,888.00
Past Treatment costs £3685.00
Replacement Child Seat & Pushchair £1250.00
Past Prescriptions & Medication £380.00
Past Travel Expenses £117.00
Future treatment £1500.00
Future driving lessons £180.00
Solicitors for the Claimant: Helen Reynolds, Spencers Solicitors Limited
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The Importance of Discretion After Cable: Ahmed v Chojnowski [2022] EWHC 2863 (KB) - Sebastian Bates, Temple Garden Chambers
19/12/22. In Cable v London Victoria Insurance Co Ltd [2020] EWCA Civ 1015, the Court of Appeal emphasised at [73] that ‘[h]aving established that there was an abuse of process, the second step for the court is the usual balancing exercise, in order to identify the proportionate sanction’. In this regard, the Court stressed that ‘[s]triking out the claim is an option, but [. . .] it is not the only, or even the primary, solution’.
The Court highlighted at [75] the need to give ‘proper weight to the consequences of striking out [a] claim and depriving [parties] of [their] Article 6 rights’ and observed at [77] that ‘delays’ in litigation are ‘[u]sually [. . .] capable of being compensated for in costs or by way of other financial sanctions, although that will always depend on the facts of the individual case’.
Summary
In the present case, as Hill J explained at [2]–[25], the Claimant had failed to fully respond to surveillance footage, which had prevented both parties from proceeding with the procedural steps that they had agreed in an unapproved and unsealed consent order. The Defendant had subsequently applied to strike out the claim on the basis that achievement of the proposed trial window was no longer possible.
Having regard to the overriding objective, Master McCloud considered that the Claimant’s failure to progress the agreed timetable amounted to obstruction of the just disposal of proceedings and thus abuse of process and decided to strike out his claim (see [35]–[40]).
Hill J rejected (at [47]–[70]) the Claimant’s appeal insofar as he contended that the Master had erred in concluding that failure to comply with an agreed timetable in a draft consent order could amount to an abuse of process or that failure to comply with the overriding objective could amount to abuse of process to the extent that such failure meant that the party concerned had failed in its duty to help the court to further that overriding objective.
Conclusion and Comment
Hill J nevertheless allowed the Claimant’s appeal.
Although Hill J accepted that the Master was ‘fully entitled to find an abuse’ at [87], she found at [90] that in proceeding to strike out the claim the Master had made ‘no mention [. . .] of the second stage of the Cable test, the proportionality concept or the weighing of factors for and against the proposition that strike out was a proportionate response to the abuse’.
Thus, Hill J ‘conduct[ed] the two-stage assessment afresh’ at [93]–[97]. On the basis that there had been an abuse of process, Hill J considered that the impact on the Defendant could ‘be addressed in costs and by other financial sanctions’ and so reinstated the claim subject to appropriate sanctions and directions.
Hill J’s judgment consequently reminds practitioners and judges of the importance of an explicit exercise of discretion at the second stage identified in Cable.
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