News Category 3
Whether An Intoxicated Passenger Can Rely On Their Own Intoxication To Avoid Or Reduce A Finding of Contributory Negligence - Nicholas Dobbs, Temple Garden Chambers
23/12/21. In Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698, the Court of Appeal considered whether a claimant could rely on his own intoxication, and consequential lack of insight, either to avoid a finding of contributory negligence, or to reduce the apportionment of responsibility for his contributory negligence. It was argued on behalf of the appellant, amongst other points, that the trial judge had wrongly applied an objective test (that of the reasonable, competent and prudent passenger) when assessing whether there was contributory negligence.
The Claimant had been a back seat passenger in a car being driven by the Defendant’s insured. They had been drinking at a nightclub. In the early hours of the morning, the car was being driven on the A40 when it crossed on to the wrong side of the road and collided with a lorry being driven in the opposite direction. It was a high-speed collision, and the Claimant suffered catastrophic brain damage. Tragically as well, the Defendant’s insured was killed. Liability for the Claimant’s claim for damages arising from the accident was admitted by the Defendant.
It was contended at trial that damages should be reduced for contributory negligence in part on the basis that the Claimant had allowed himself to be driven by the Defendant’s insured when he had obviously been drinking to excess. As a result of the tragic consequences of the collision and its continuing effects, there was no evidence from the Claimant or the Defendant’s insured, and no oral evidence from another passenger (not in the car at the time of the collision), so the trial judge's findings of fact were based on the known facts and inferences drawn from them.
The trial judge found that Mr Campbell should have appreciated that the Defendant’s insured had drunk too much alcohol to be fit to drive. He assessed the Claimant’s contributory negligence at 20%. The appeal challenged the judge's findings both that there was contributory negligence and that the reduction of damages should be 20 per cent. The Court of Appeal was asked to consider whether the judge had wrongly applied a test of the objective reasonable, competent and prudent passenger when the Claimant was too intoxicated to be held responsible for his actions.
The Court of Appeal held that the trial judge was right to assess the Claimant’s actions at the relevant time by the standards of a reasonable, prudent and competent adult; the finding of contributory negligence was properly made. The Court referred to Owens v Brimmell [1977] QB 859, in which the passenger and driver had been on a pub crawl and had both been drinking. On the way home the driver hit a lamp post and the passenger suffered serious injuries. A reduction of 20% for contributory negligence was made. Watkins J held (at 866H):
"… there is widespread and weighty authority for the proposition that a passenger may be guilty of contributory negligence if he rides with the driver of a car whom he knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver's capacity to drive … so, also, may a passenger be guilty of contributory negligence if he, knowing he is going to be driven in a car by his companion later, accompanies him upon a bout of drinking which has the effect, eventually, of robbing the passenger of clear thought and perception and diminishes the driver's capacity to drive properly and carefully".
Per Underhill LJ (at [49]), the primary question in any case where contributory negligence is in issue is whether the claimant took reasonable care for their own safety. That is an objective question, and the courts have recognised that in answering it is necessary to take into account at least some characteristics of the individual, such as age. However, “the law in this jurisdiction had come down against treating the fact that the claimant is drunk as a characteristic that can be taken into account in deciding whether he or she took reasonable care for their own safety” (at [50]).
The Court acknowledged that the apportionment of responsibility in contributory negligence was a decision for the trial judge. Accordingly, there was a limited basis on which it could interfere with the trial judge's apportionment of 20%. An appellate court could interfere only if the judgment exceeded the ambit where reasonable disagreement was possible and the court below had gone wrong. However, there was nothing in the present case to show that the judge's apportionment was wrong and the appeal was dismissed.
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Toombes v Mitchell [2021] EWHC 3234 (QB) - Rochelle Powell, Temple Garden Chambers
21/12/21. This landmark ruling has been a source of great concern for medical practitioners because it means they can now be found liable for negligent pre-conception advice resulting in the birth of a child with a health condition.
Background
The case concerned a claim for damages for negligent clinical advice given to a mother prior to her conception. The mother had arranged a pre-conception consultation with the Defendant doctor on 27 February 2001 and asked about folic acid. It was alleged that the Defendant advised that if the mother was eating a healthy diet, it was not necessary to take folic acid supplements. The note of the consultation simply said “folate if desired discussed”. The mother did not take folic acid and subsequently became pregnant with the Claimant. The Claimant was a 20-year-old woman born with a neural tube defect causing spinal cord tethering. She suffered from impaired mobility and incontinence. She claimed that the cause of her disability was her mother's failure to take folic acid before her conception, which was in turn caused by the doctor's negligent advice.
Crucially, at an earlier preliminary hearing, the parties agreed the following facts:
i. The Defendant's failure to advise the Claimant's mother that she should take folic acid supplement, and to prescribe the supplement, was a breach of the duty of care;
ii. But for that breach of duty, the Claimant's mother would have delayed attempting to conceive for a number of weeks whilst she increased her intake of folic acid and achieved the therapeutic level of the folic acid in her bloodstream;
iii. The Claimant was conceived shortly after the consultation and but for the breach, the Claimant would not have been conceived and born at all; and,
iv. The sibling would have been “a genetically different person” who would not have suffered from a neural tube defect.
Evidence
In reaching her decision, HHJ Coe QC considered key evidence from the Claimant’s mother, her medical records and the Defendant. On the basis of her evidence and medical records, it was noted that the mother would have done everything she could to ensure a healthy baby. She had stopped drinking, reduced her caffeine and was refraining from sexual intercourse at the time of the pre-conception appointment. When the mother was advised by the first midwife she saw to take folic acid, she did so immediately. When Mrs Toombes’ became pregnant a second time, she took the larger dose of folic acid pre-pregnancy, and for the first 12 weeks theraftef. The Defendant accepted that his note of the consultation was “inadequate” and agreed that the relevant literature of the time made it clear that folic acid should be taken “before conception” and when “preparing for pregnancy”. However, it was his view that the advice to “folate if desired” was not inconsistent with giving the usual advice in accordance with the recommended guidance.
Decision
The Court rejected Dr. Mitchell’s evidence that he provided advice in accordance with the recommendations at the time. It was held that he should have given the mother advice about folic acid in accordance with the guidance, namely that she should have been told that the recommendation was to take folic acid daily “before conception”. The recorded advice “folate if desired” was inadequate and had the mother received the appropriate advice, she would have followed it. She was “a very careful person who was very concerned about doing the right thing”. The judge held (at paragraph 78) that had the Claimant’s mother received the appropriate advice, she would have:
“…delayed conception, that she would have refrained from unprotected sexual intercourse until she had taken folic acid for at least some weeks; that she would not have attempted to conceive until she was taking the prescribed dose of folic acid, that she would have delayed attempting to conceive for at least one month; and (from her witness statement and oral evidence) that she would have waited until she had completed an appropriate programme of pre- conception folic acid.”
Accordingly, the Claimant’s claim succeeded.
Comment
Whilst the implications of this ruling, in terms of both defensive medicine and patient care, may sit uneasily with many healthcare professional, it is important to note that this case is very fact specific. There is still a requirement to prove a causal link between the circumstances of the sexual intercourse and any disability.
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The varied dangers of being a vulnerable road user – Scottish legal insights on road traffic accident claims
17/12/21. Motorcyclists are generally more at risk on the roads than a person travelling a car, van or lorry. They are more exposed on the open road.
Cars have airbags which are built in that will come into force if there is a collision. A person travelling in a car, van or lorry are protected by a solid structure which could significantly reduce the risk of injury if they are involved in a collision.
For example, if a road traffic accident occurred between a large SUV and a motorcyclist, you would anticipate that the motorcyclist would suffer from more severe injuries. There is a greater risk to victims of a road collision to sustain greater harm if they are not at the time of the accident travelling a vehicle such as a car or a van.
The concept of contributory negligence is set out in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945.
The onus of providing that contributory negligence ought to apply will lie with the Defender. Generally, the decision will be based on the facts and circumstances of the case. In addition, whilst the above section describes the general idea of where contributory negligence would apply, it does not discuss how the responsibility should be apportioned between the parties.
Common law has generally clarified two aspects of how to apportion the blame. These are: -
"causative potency" of each party and the "relative blameworthiness".
Causative potency and relative blameworthiness
Cases where causative potency and relative blameworthiness has been considered:-
In this case, these two components were considered when apportioning causative potency and relative blameworthiness and were used to reduce a previous decision which found a pedestrian 90% liable for the accident, down to 50%.
This case concerned a 13-year-old schoolgirl, who alighted from a clearly marked school bus and proceeded to cross a rural two-way road from behind the school bus. As she began to cross the road, she was struck by a car.
She was thrown over the roof of the vehicle and landed behind it. The driver advised that at the time of the accident, he had been driving at around 50mphand had failed to slow down when he was approaching the minibus. He had not thought that there would be children crossing the road at the time of the incident.
Another case in which causative potency and relative blameworthiness was considered was the case of Hernandez v Acar. In this case, Mr Acar, his vehicle, which drove into the path of a motorcyclist.
The motorcyclist was thrown some 12 to 30 metres forward as a result of the collision. Tragically, Mr Hernandez suffered such severe injuries, he has been left paraplegic.
The motorcyclist had been travelling at 50mph in a 30mph zone, whilst Mr Acar had emerged from a junction when it was unsafe to do so. The Highway Code states that extra care at junctions must be sought to watch out for motorcyclists, among other road users.
Both drivers were held at fault for the incident. Causative potency was considered to tip the case in favour of the motorcyclist. In collisions with other motor vehicles, it is the motorcycle who is more likely to suffer more severe injuries.
The motorcyclist was found 40% to blame, so he, was awarded 60% of the true value of his injuries, despite the fact that he had been travelling 50mph in a 30mph zone.
It is encouraging to see Courts recognising that motorcyclists and more vulnerable road users being supported by causative potency and relative blameworthiness. Previous cases have failed to recognise these components. Goad v Butcher which saw a speeding motorcyclist held entirely at fault for an accident, despite the fact that a tractor had cut a corner, resulting in his view of oncoming traffic being restricted.
These recent cases, in particular Jackson and Hernandez, highlight the Court’s acknowledgement of vulnerability of some road users and appropriately balance liability in the causative potency of accidents.
However, it is always important to take into consideration that each case is assessed on a case by case basis, and no two accidents are the same.
Jamie McGill is a Solicitor in the Personal Injury team at Calio Claims, based in Edinburgh. He has experience of litigating matters, including road traffic accident claims and accident at work claims, for pursuers in the Sheriff Courts, All-Scotland Personal Injury Court, and the Court of Session.
You can read more about road traffic accident claims law in Scotland in this guide here.
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Do not Destroy! Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB) - Rochelle Powell, Temple Garden Chambers
29/11/21. This was an application made on behalf of the claimants for orders in relation principally to disclosure against the defendant. The claim was brought against the manufacturer of a drain cleaner on the basis that the drain cleaning product was the cause of death and injury to the claimants. On 23 November 2015 the claimants’ solicitors, Leigh Day, wrote to the defendant putting them on notice of these claims. The manager of the defendant company, Mr Sutton, indicated that this letter had been passed on to their insurers. The defendant insurers wrote to Leigh Day on 21 December 2015, acknowledging the claim.
Between December 2017 and August 2018, proceedings were issued, Particulars of claim served and the claim defended. In March 2021 an order was made, which included a direction that the defendant file and serve its electronic documents by questionnaire. On 17 May 2021, the defendant’s solicitors, Kennedys, wrote to Leigh Day indicating that the defendant had no hard documentation dating back more than six years. In response Leigh Day wrote to Kennedys, setting out a number of concerns. In particular, he asked:
“Please can you explain what hard copy documents post 2009 were destroyed and why? When were these hard copy documents post 2009 scanned on to the defendants' hard drive and for what purpose?”
Kennedys responded on 7 June 2021, dropping what Mr Justice Martin Spencer described as “a bombshell”, namely that:
“All hard copy documentation in the factory was shredded in 2016.”
The issue to be determined by the court was the appropriate order to make when it became apparent that documents were destroyed shortly after the defendants were put on notice of the claim. Spencer J. was not persuaded by the defendant’s attempt to explain the error, commenting at paragraph [12]:
“The question arises what the defendant was doing shredding documentation in 2016 when they had been put on notice of a claim in 2015. That question remains to be answered, but I note that although it has been asserted that Mr Mounce and Mr Sutton, who jointly are the moving forces behind the defendant company, are not sophisticated when it comes to information technology and computers, they were experienced when it comes to facing claims of various sorts… and therefore can be expected to have been advised many times previously of the important obligation of retaining documentation relevant to litigation.”
Accordingly, an order was made requiring the defendant to (amongst other things):
1. Serve witness statements from both Mr Mounce and Mr Sutton explaining a number of matters, including which of the documents listed on the defendants' disclosure list were provided by the company or its insurance broker, Towergate, or any other source. In addition, Mr Mounce and/or Mr Sutton were required to explain how the hard copy documents were scanned on to the system and by whom.
2. The defendant to allow the claimants' appointed forensic IT expert access to the computer and hard drive to carry out his own searches.
3. The defendant to identify the previous insurers before Towergate, and ask those insurers whether they have any relevant documents involving previous claims in relation to the drain cleaning product.
4. The defendant to access documents held in a digital archive and to conduct searches of those documents for relevant material within three weeks.
Comment
Clearly, the failure to comply with the duty of disclosure may result in the requirement to fulfil far more onerous obligations. This is a useful reminder to practitioners, insurers and their clients, to ensure any and all relevant material is retained.
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Golizardeh v Sarfraz [2021] EWHC 2814 (Ch): Interpreters, Remote Trials, Fairness & Identifying Language Issues Early - Nicholas Dobbs, Temple Garden Chambers
25/11/21. In Golizardeh v Sarfraz, the defendant appealed against an order giving judgment for the claimant in the sum of £200,000, plus interest. The appeal was brought under CPR 52.21(3)(b) on the grounds that the decision of the Judge was unjust because of a serious procedural irregularity, namely that the Judge wrongly refused to allow the use of an interpreter for one of the defendant’s witnesses (who requested an interpreter) and, more generally, did not allow the interpreter to assist the defendant and his other witnesses, for all of whom English was their second language.
Early identification of any language difficulties, and appropriate action, is beneficial in any case but especially in the circumstances of this appeal. Relevant case law, including Dunbar Assets PLC v Dorcas Holdings Ltd & Ors [2013] EWCA Civ 864, demonstrated that the appellant needed to show both that there was a serious irregularity and that the decision was thereby rendered unjust; in assessing whether there was a procedural irregularity, the court would consider all the circumstances, including the positions taken by the parties at the hearing, which was crucial here.
The defendant’s witnesses provided witness statements in English. None gave any indication that they had been translated from any other language. No application had been made for the assistance of an interpreter at the CMC. However, an interpreter was made available at trial for the defendant’s witnesses at trial, which was to be conducted remotely via Skype for Business in accordance with the Civil Justice Protocol Regarding Remote Hearings. The defendant’s witnesses were organised to give evidence from the same room, where the interpreter was also present.
At the hearing, the Judge said that that the...
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