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Summary of Recent Cases, September 2020

21/09/20. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Summary of Recent Cases - Substantive Law

Campbell (A protected party who proceeds by his father and litigation friend Donald Campbell) v Advantage Insurance Company Ltd [2020] EWHC 2210 (QB)

The Claimant attended a nightclub in Cheltenham along with two friends, the brothers Dean and Aaron Brown. Dean had driven them to the nightclub in his car. All three were drinking at the nightclub. The Claimant was later assisted to Dean's car and placed in the front passenger seat. He was drunk and leaned out of the vehicle to be sick on the ground. The brothers went back to the club to continue drinking and returned about an hour later. At that point, the car would not start. Aaron returned to the club to find some jump leads. When he came back the car was gone. At about 4am, the car drove headlong into an articulated lorry. Dean was killed, and the Claimant, who had managed to move to the rear seat, survived but sustained extremely serious injuries. He brought a claim for those injuries and resulting losses.

The Defendant admitted primary liability, but alleged contributory negligence on the basis that the Claimant had knowingly allowed himself to be driven by Dean, whom he knew or ought to have known was not fit to drive due to his intoxicated state; and because the Claimant did not wear a seatbelt. The court had directed for the issues of liability and causation to be dealt with as preliminary matters.

Before the trial began, Aaron committed suicide. Before his death, he provided written witness statements for the Claimant's solicitors and for the Defendant's. The Claimant was in a minimally conscious state and was unable to give evidence on his own behalf. There was evidence from the Claimant's father and the Claimant's girlfriend, as well as the lorry driver, and emergency responders. The court also had the benefit of a post mortem and forensic toxicology reports for Dean Brown, as well as police reports, collision investigation reports and medico-legal reports.

HHJ Robinson (sitting as a judge of the High Court) made the following factual findings:
• On balance of probabilities Aaron put the seat belt on the Claimant after he was brought to the car, and the Claimant was still wearing it when the brothers returned an hour later.
• The toxicology report showed that Dean had used cannabis some time before his death. The test results were suggestive of heavy and/or regular use. He was over the legal driving limit for alcohol.
• At the time of collision neither the Claimant nor Dean were wearing seatbelts.
• The Claimant was most likely lying across the rear seat at the time of collision. On balance of probabilities, Dean had taken the initiative to assist the Claimant from the front passenger seat and into the back seat prior to driving off.

HHJ Robinson then proceeded to consider whether the Claimant had capacity to consent to being moved into the back seat of the car, and to being driven by Dean. The Claimant's state of awareness generally, and specifically his knowledge of Dean's level of intoxication were inexorably linked to the issue of capacity. He found that by the time the Claimant was put into the front seat he must have been aware that Dean had drunk a great deal of alcohol. It was then necessary to determine what the Claimant's state of awareness and capacity were when the brothers returned an hour later.

Pursuant to the Mental Capacity Act 2005, there is a presumption of capacity. The question of capacity is time and issue specific. HHJ Robinson found that the evidence of the Claimant's previous alcohol consumption was insufficient to displace the presumption of capacity to consent to moving position into the back of the car. If the Claimant had capacity to consent to change position in the car, then he also had capacity to consent to being driven in the car. If his intention was to leave the car before it was driven off, he would not have got into the back seat. He knew that the vehicle belonged to Dean and that Dean would likely drive it. HHJ Robinson further found that the Claimant was aware the Dean had consumed enough alcohol to impair his ability to drive safely.

HHJ Robinson considered the relevant leading cases on contributory negligence, Owens v Brimmell [1977] QB 857, Froom v Butcher [1976] QB 286 andBooth v White [2003] EWCA Civ 1708. If contrary to his findings, the Claimant was unable to make his own assessment of Dean's fitness to drive due to his intoxication, it was necessary to consider what a reasonable man in the Claimant's shoes would have done, adopting the test in Booth v White. In this case a reasonable man was a man who was able to assess the driver's ability to drive safely. Had the Claimant been able to make such an assessment he would have concluded that Dean had consumed so much alcohol that his ability to drive safely was impaired.

It was argued on behalf of the Claimant that he did not have capacity to consent to anything. The Claimant relied on Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027, where the claimant, who suffered from Type 1 diabetes and brain damage from an accident, gained access to a flat roof at a hospital. He climbed over the safety fence surrounding the roof terrace and sustained serious injuries when falling to the ground. In that case, Martin Spencer J found that there was no contributory negligence as the law did not penalise a person for being ill or of unsound mind. HHJ Robinson held that this judgment did not apply to self-induced intoxication. It also appeared thoroughly unattractive that a person who deliberately consumed "so much alcohol that they are unable to appreciate the foolishness of their decision" would be in a better position in law than someone who is mildly drunk.

HHJ Robinson then considered the authorities relevant to contributory negligence and seatbelts. He found that the Claimant had capacity to decide whether to wear a seatbelt, and had decided not to do so. He considered the Claimant's argument that Dean owed a duty to assist or encourage him to wear his seatbelt, but found that this approach was unduly paternalistic. The speed of the impact and the Claimant's height, complicated the assessment of the potential protective effect of the seatbelt. The expert evidence did not show that wearing a seat belt would have made a "considerable difference" such that the Claimant's injuries would have been a "good deal less severe" (Froom v Butcher).

HHJ Robinson took account of the fact that (1) there was no evidence of a prior agreement that Dean would drive the Claimant from the club; (2) the Claimant had not been with Dean during the entire time Dean was drinking; and (3) it was likely that the decision to be driven by Dean had been taken without a great deal of thought. In the circumstances, the appropriate degree of contributory fault on the Claimant's part was 20%.

Summary of Recent Cases - Costs

Finsbury Food Group Plc v Scott Dover [2020] EWHC 2176 (QB)

The Claimant, who was employed by the Defendant, was injured in the course of his employment, and was left with a permanently damaged middle finger. The claim was initially valued at less than £25,000, thus falling within the remit of the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims ("the Protocol"). The Defendant failed to respond to the CNF which was uploaded to the portal, and accordingly, the claim exited the Protocol. Counsel advised on quantum in conference after the case exited the Protocol. The case ultimately settled for £70,000 and the Claimant submitted a Bill of Costs, including Counsel's fee of £650 plus VAT.

The CPR provides that in a claim which has been issued under Stage 3 of the Protocol procedure, the cost of counsel's fee for an advice on valuation is fixed at £150 plus VAT, pursuant to CPR 45.23B and Table 6A. Where a claim starts within the Protocol, but no longer continues within it, CPR 45.29I provides that the cost of any advice from counsel, as provided for in the relevant Protocol, may be recovered.

The Defendant's primary case was that there was no entitlement to recover Counsel's fee, on the basis that it had been incurred after the claim left the Protocol and that no such fee was payable under the provisions applicable to a claim which had exited the Protocol. Alternatively, it was argued that the cost of Counsel's advice was limited to £150 plus VAT. The Costs Officer rejected the Defendant's arguments and held that the provisions permitted recovery of the fee for advising in conference as a disbursement. The fee was, however, assessed down to £500 plus VAT.

The Defendant appealed to the Senior Courts Costs Office, where Master Brown dismissed the appeal. He found that CPR 45.23B and Table 6A did not apply to ex Protocol claims, as it was clear from CPR 45.16 and 45.17 that the fixed costs regime under CPR 45 section III only applied to claims which have been or should have been started under PD 8B, and not ones that had for any reason left the Protocol. Master Brown granted permission to appeal to the High Court...

The appeal was heard by HHJ Lambert, and the only remaining issue before her was whether CPR 45.29I (2)(c) limited the quantum of counsel's fee to £150 plus VAT. Having set out the correct approach to interpreting the relevant CPR rule, HHJ Lambert considered the grammatical meaning of the provision. She found that viewed linguistically, the meaning of CPR 45.29I (2)(c) was clear and unambiguous. The phrase "as provided for in the relevant Protocol" was not referring to the cost as set out in the Protocol, but to the type of disbursement there provided. Subsection (2)(c) must be read in conjunction with subsections (1)(a) and (b), which permit the court to allow a claim for a disbursement "of the type mentioned in paragraphs 2 or 3" but prohibited a claim for a disbursement of a type not listed. Accordingly, the purpose of subparagraph (2) is to list the type of disbursements that are allowed. This was also the only logical construction of CPR 45.29I (2)(c). The cost of other disbursements referred to in subparagraph (2) are fixed neither by the Protocol nor the rules, save for subparagraph (g) where the upper limit of the claim is expressly set out. Furthermore, the Provision relied upon by the Defendant concerned claims where settlement had been reached at Stage 2, and was therefore inapt when considering claims which had left the Protocol. Finally, if the drafter had intended to fix the costs of legal advice for a claim outside the Protocol, they could easily have included a provision to this effect as had been done in Section III.

HHJ Lambert then proceeded to consider whether the grammatical meaning of the provision led to an absurd outcome or an outcome which the drafter could not reasonably have intended. She did not consider that this was the case. Claims that fall off the Protocol are a mixed bag. Some would be of a complexity and value, where there was nothing absurd about the costs of valuation advice not being fixed. Moreover, it would be strange to see the same fixed fee be recoverable in a straight forward claim of lower value, as a higher value claim involving loss of earning and handicap on the labour market. Further, the costs are not unchecked and are subject to assessment. The drafting of Section IIIA also suggests a greater degree of flexibility.

Accordingly, the appeal was dismissed.

Summary of Recent Cases - Civil Procedure

Domeney (widow & administratrix of the estate of Albert Domeney, deceased) v (1) Rees (2) Advantage Insurance Co Ltd [2020] EWHC 2115 (QB)

The Claimant's husband was killed in a road traffic accident, which occurred when the Defendant turned his car directly across the path of the deceased's motorbike. The First Defendant was convicted of causing death by careless driving whilst over the prescribed limit of a specified controlled drug (cannabis). There were no independent witnesses to the accident, but three other drivers had observed the deceased's driving prior to the accident, and provided estimates of his speed ranging from 60mph to 80mph. There were two accident reconstruction reports, one prepared as part of the police investigation, and another produced by a retired police officer who had served as a senior forensic collision investigator. Neither report was able to provide a reliable estimate of the motorbike's speed pre-collision, as there was insufficient physical evidence. There were no marks on the road prior to the collision site, no calculations could be made from the throwing distance of the deceased because he was arrested by a metal fence within a hedgerow, and the damage to the vehicles did not enable calculations because of the disparity in mass between the vehicles and because the motorbike had not travelled through the centre of mass of the car. The retired police officer also provided some alternative scenarios in relation to the deceased's distance from the point of collision at 80mph and 50mph, and his ability to take evasive action.

At a CMC, the Defendants made an application for permission to rely on evidence from an A&E consultant and a freshly instructed accident reconstruction expert. Master Davison refused permission for the A&E consultant. The application for accident reconstruction evidence was unopposed and was granted. The report was to be served unilaterally, and the Claimant was granted like permission, if on considering the report she wished to rely on her own expert.

Having reflected on the application overnight, Master Davison revoked permission and listed the matter for a further hearing. The Defendants argued that the additional accident reconstruction evidence would enable the trial judge to reach a properly informed view as to how long it would have taken the First Defendant to complete the turn; how far the deceased would have been from the point of impact when the First Defendant started his turn, if he had been travelling at the speed limit; how long it would have taken the deceased to cover that distance if he had been travelling within the speed limit; whether the First Defendant could have cleared the southbound lane within this time. The expert could also form their own opinion as to the speed of the motorbike.

Master Davison found that the test set out in CPR Part 35, for the expert evidence to be reasonably required to resolve the proceedings, was "nowhere near made out". The court is not bound to grant permission for expert evidence merely because the parties have agreed to it. Accordingly, it was incumbent on the parties to furnish the court with sufficient material to enable the court to determine the need for the evidence. The parties had failed to provide the two existing accident reconstruction reports in the case until after the CMC and had also failed to provide costs estimates for the proposed evidence. At the second hearing, the Claimant's counsel provided an estimated overall cost for both sides' reconstruction evidence of £24,000. Master Davison considered that this sum appeared realistic. He also noted that the involvement of the experts would impact on the time required for the trial.

Master Davison's main objections to the evidence were as follows:

1. Given that two experts had unequivocally stated that they were unable to offer a reliable opinion as to the motorbike's speed, there was no realistic prospect that a third expert could do better. This was a case where the court will have to makes findings as to speed on the basis of lay witness evidence. There was "nothing unusual or untoward about that".
2. It would be very unusual to have expert accident reconstruction evidence in circumstances where the experts cannot reconstruct the single most important feature of the case, i.e. speed. Where there is insufficient forensic material from which experts can draw conclusion, the experts are redundant. The interpretation of witness evidence is a matter for the judge.
3. Whilst the accident reconstruction expert would be able to provide alternative scenarios, there are difficulties with admitting such evidence:
a. As the dynamics of this accident were not known, the evidence of elaborate alternative scenarios proposed would be "highly speculative, indeed absurdly so".
b. It was difficult to see how the trial judge would be assisted by the evidence in determining contributory negligence. "The assessment of contribution requires an evaluation of the culpability and causative potency of the negligence found against each motorist. That is an essentially impressionistic decision, involving the weighing and balancing of a range of different factors." The authorities discourage "prolonged or intensive enquiry" into the "fine degrees of contributory negligence" (Stanton v Collinson [2010] EWCA Civ 81).

Accordingly, permission was refused. Master Davison tested this decision by asking whether, if he were the trial judge, he would want expert evidence of the kind proposed. He found that the answer was "emphatically that I would not". If admitted, the evidence would have added little to the trial but expense.

Olivia Rosenstrom
Temple Garden Chambers

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