March Topics. Exclusion of Service by fax. Case Comment Selda Dursan v J Sainsbury PLC (2015) [2015] EWHC 233 (QB) Finding the Balance

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1 March 2015 Welcome to the March edition of our newsletter. Weightmans Motor Team will be providing quarterly newsletters reviewing topical issues and cases of interest which we hope you will enjoy. Topics Exclusion of Service by fax Philip Nicholas discusses a recent decision on one of his own cases on whether service can be excluded by fax where the claimant s solicitor s letterhead so provides. Case Comment Selda Dursan v J Sainsbury PLC (2015) [2015] EWHC 233 (QB) Rebecca Baty comments on this recent High Court decision where one of the issues was the order in which an HGV driver should have checked his mirrors. Finding the Balance Laura O Connor advises caution when making liability admissions under the RTA portal. The implications of the Vnuk case David Holt considers this recent ECJ case which means that cars driven solely on private property may need to be insured in future and all motor insurance policies amended. We hope you enjoy reading our update. If you have any comments or for further information in relation to any of the issues or if you would like to see us over a particular topic in our next update then please contact Laura O Connor, Associate, on or by via laura.o connor@weightmans.com

2 Exclusion of Service by fax not worth the paper it s written on? Facts The claimant s claim arose out of a road traffic accident on 2 May Liability was not in dispute. Proceedings were issued on 5 August The defendant made a Part 36 offer on 25 April The claimant did not provide a formal response to that offer. Thereafter, pursuant to the court directions, the defendant put CPR Part 35 questions to the claimant s orthopaedic expert on 19 June The expert provided his responses by to both parties on Sunday 29 June The responses were favourable to the defendant s pleaded case. On Monday 30 June 2014 at 14:09 the defendant sent by fax (and a hard copy by post) a varied Part 36 offer to the claimant s solicitor. The revised offer was less advantageous to the claimant as permitted by CPR Part 36.3(6). The fax confirmation sheet recorded the transmission as complete at 14:10. At 18:19 the claimant sent a fax purporting to accept the original defendant s Part 36 offer. The fax confirmation sheet recorded the transmission from the claimant s solicitor as complete at 18:20. The claimant also sent an to the defendant attaching the fax that evening at 19:17. A dispute arose between the parties whether the defendant had successfully revised the terms of the Part 36 offer before the claimant purported to accept it. The claimant thereafter issued an application seeking a declaration that the claim had been settled as the claimant was entitled to accept the original terms of the Part 36 offer. The claimant s solicitor submitted that: 1. He did not receive the defendant s fax varying the terms of the original Part 36 offer until after the purported acceptance of the original Part 36 offer. 2. In any event the claimant s solicitor s letter headed paper specifically excluded service of documents by fax and . Therefore the defendant s fax had not been validly served. Judgement 1. Whether or not the claimant receives a fax which has been successfully transmitted is irrelevant for the purposes of CPR In relation to service by fax, the defendant relied on 6APD.4, paragraph 4.1 (2) (a) and (c). The fact that the claimant had provided a fax number on the claim form was sufficient for the purposes of subsection (c) to confirm their acceptance to service of documents by fax. Simply because the claimant s solicitor s letterhead specifically excludes service by fax does not trump the relevant practice direction. Accordingly the defendant s variation of the Part 36 offer by fax was deemed served on 30 June. The claimant s purported acceptance of the original Part 36 offer was deemed served on 1 July 2014 as both the fax and were transmitted after 16:30 on 30 June. Accordingly, the claimant was not entitled to accept the original Part 36 offer, the claim was not settled, and the claimant s application was dismissed with costs ordered for the defendant. Comment It is noteworthy that at the hearing, the claimant did not seek to present the following arguments:- Whether the terms of the varied Part 36 offer were clear (see paragraph 32 of the judgement of Lord Justice Moore Bick in Gibbon v Manchester City Council [2010] EWCA CIV 726).

3 That the defendant s purported variation to the Part 36 offer needed to be in a specific format (see Supergroup PLC v Justenough Software CORP INC (2014) QBD (Comm) relating to withdrawal and variation of Part 36 offers). That the defendant s fax confirmation sheet recording the successful transmission was insufficient evidence of the fax to have been successfully transmitted. The court concluded that as the claimant s solicitor had included his fax number (and not his address) on the claim form, this was determinative on the issue of whether they would accept service by fax. The express exclusion of service by fax on the claimant s solicitor s letter-headed paper could not trump 6APD.4, paragraph 4.1 (2) (c). It could be argued, following this decision, express exclusion of service by fax on a firm s letterhead is worthless in situations where a fax number had been included on a claim form. Whilst not considered at the hearing, it appears that any letter, fax or other written communication to the claimant s firm would be a document for the purposes of CPR Therefore one might ask the logical question if a firm is not prepared to accept service of documents by fax, then why place the firm s fax number on the claim form (for the purposes of sub section (c)) or even on the firm s writing paper (for the purposes of subsection (a))? From a practice point of view, if it is a practitioner s intention not to accept service of documents by fax or other electronic means, then the only certain way to avoid falling foul of 6APD.4 is to avoid putting a fax number or address on any court documents, and even on the firm s letter headed paper. Case Comment - Selda Dursan v J Sainsbury Plc (2015) [2015] EWHC 233 (QB) Facts The deceased had been knocked over and killed by a goods vehicle driven by an employee of the defendant company. He had been crossing a two-lane road on foot, between lines of queuing traffic. He had begun crossing from the nearside pavement, crossing the inside lane of traffic behind a bus and continuing across the outside lane in front of the lorry. As he did so, the lorry moved forward and collided with him. At the time of the accident it was dark, though the road was lit by vehicular, street and shop lighting. The deceased was wearing dark clothing; it was raining; the traffic was stopping and starting and pedestrians were crossing the road in various places even though there was a pedestrian crossing a short distance away. The lorry was fitted with mirrors which complied with Directive 2003/97. They included a "Class VI" mirror on the nearside corner of the cab, giving a view of the blind spot immediately in front of the vehicle. It was common ground that once the deceased had begun to cross the road, the driver would only have been able to see him through his nearside mirrors, if at all. It was also common ground that there was no authoritative guidance as to the sequence in which visual checks should be made by those driving goods vehicles. The driver asserted that he had checked his nearside window, his nearside mirrors, and then his offside mirrors before moving forward, but had not seen the deceased. The joint experts' evidence was that those checks would have taken him between three and six seconds. The deceased s widow brought an action against the defendant company on behalf of the estate and dependants. She argued that the driver should have made a final check in his Class VI mirror before moving forward.

4 Held The driver was conscientious and careful and had given truthful evidence. There was no doubt that he had carefully carried out the sequence of visual checks he described. While there was some attraction in the submission that he should have taken a final look in his Class VI mirror before pulling off, all of the circumstances had to be considered. It was apparent from CCTV footage that the lorry had been positioned slightly ahead of the back of the bus, so there was some overlap between the two vehicles. The deceased would therefore have had to negotiate a dog-leg around the back and offside of the bus before crossing in front of the lorry. When the driver began his sequence of visual checks, he would not have been able to see the deceased in his nearside window waiting to cross. Once the deceased began to cross, he would only have been visible through the nearside mirrors, and only for about half the time that he would have been visible had he not been obscured by the back of the bus. Since there was no prescribed or recommended sequence of visual checks, it was for the driver to do what he thought appropriate, subject to the considerations described in the Highway Code and the handbook produced by the Driving Standards Agency. The driver could not be criticised for checking his nearside window and mirrors, including his Class VI mirror, before checking his offside views. The question was whether, after doing so, he should have re-checked his Class VI mirror. His evidence was that the checks revealed nothing to alert him to the possible presence of pedestrians in front of his lorry. That did not imply any lack of care on his part. Even if the relative positions of the bus and the lorry had allowed him a better view, he might well have finished his nearside checks before the deceased came into view. Given the timings, it was likely that he checked his Class VI mirror only a second or two before pulling off, and it would be unreasonable to expect him to have anticipated a pedestrian entering that space during that time. The possibility that a pedestrian would come down the offside of the bus and cross the front of the lorry was not one that ought to have been within the driver's contemplation. Moreover, even if he had re-checked his Class VI mirror, it could not be established that the deceased would have been visible. While the circumstances demanded a significant degree of vigilance from the driver, there could be no justifiable criticism of his not re-checking his Class VI mirror before moving forward. The deceased had therefore failed to establish any lack of reasonable care on his part. In failing to take precautions for his own safety, whether by using the pedestrian crossing, wearing lighter coloured clothing or taking a less hazardous route across the road, the deceased had been the author of the accident. Comment This is an interesting case in which the court held that a driver who had knocked down and killed a pedestrian had done all that he reasonably could, in the discharge of his duty of care, and therefore could not be considered to be negligent. In the absence of authoritative guidance as to the sequence in which visual checks should be made, it was for the driver to determine the appropriate sequence, subject to the considerations in the Highway Code and the Driving Standards Agency handbook. Finding the Balance what to bear in mind when considering whether to make an admission in the RTA portal The MoJ portal for low value RTA claims was introduced with a view to streamlining low value claims and reducing the costs involved. Clearly, such a reduction in costs is an attractive proposition to insurers and self insured s. However, as we all know, the quid pro quo for a reduction in costs is that, for a matter to remain in the portal, an early admission of liability must be made.

5 In most cases the liability issues will be clear. Either liability can be admitted, in which case the case continues in the portal, or denied, in which case it drops out. However, difficulties can arise where primary liability appears to rest with the defendant but there is an issue as to contributory negligence. Only arguments in relation to the wearing of a seatbelt are allowed to continue under the portal. Alternatively, it may be the case where there seems to be a liability argument but there are concerns over the strength of those arguments. In view of the costs savings, there may be a temptation to admit liability in full. The matter is likely then to remain in the portal as opposed to falling out and attracting further costs. However, that may not be the end of the story. What happens if a claim is submitted through the portal, an admission of liability is made (despite there being a possible liability/contributory negligence argument), and the claimant s solicitors then reveal their client has suffered a head injury. The claim suddenly becomes more significant in relation to quantum than first thought. The claimant has their liability admission but the claim will exit the portal and you no longer have the benefit of your costs saving. Admissions of liability, whether made under the portal or otherwise, are binding. Resiling from an admission of liability can only be achieved in limited circumstances. The practice direction to CPR Part 8 (8B) states that an admission made during the RTA protocol process is an admission for the purposes of CPR 14. CPR 14.1, in turn, provides that an admission can only be withdrawn with the court s permission, or with the consent of all the parties (which, frankly, you are unlikely to get). Therefore, should you wish to resile from an admission of liability, this can only be applied for once proceedings have been issued. Let s not forget the rather extensive criterion in the CPR to be satisfied before the court will make an order permitting the resiling from the admission (which is not easily satisfied). We would therefore advise that when considering whether to make an admission under the RTA protocol you consider the extent of the claimant s injuries carefully. Is the case going to remain in the portal or is there a risk that its value may take it outside the process in the future? Whilst the claimant s solicitors may not have actually confirmed the claimant has suffered a head injury (whether minor or otherwise), is there any mention of bruising/a blow to the head or headaches? Is there any indication that the claimant is absent from work and, if so, how long have they been absent? It may also be worthwhile speaking to your insured driver to find out whether they thought that the claimant had suffered a more serious injury than the claims notification form indicates. The decision as to whether to admit liability within the portal is a finely balanced one. On the one hand, you have the costs savings that the portal can provide but, on the other, there is the risk that you may end up admitting liability in a claim worth much more than the portal limit. If that is the case, the fact that the case was not suitable for the portal does not make the admission any less binding. This must be kept in mind and each case must be considered on a case by case basis.

6 The implications of the Vnuk case - recent ECJ case which means that cars driven solely on private property may need to be insured in future and all motor insurance policies amended In the recent case of Damijan Vnuk v Zavarovalnica Trigalev (C-162/13) the Court of Justice of the European Union ( CJEU ), in a matter referred to it by the Slovenian Supreme Court, considered the meaning of Article 3(1) of the First Directive on Motor Insurance (72/166/EEC). The pertinent facts were that Mr Vnuk, a farmworker, was knocked off a ladder in a farmyard by a trailer attached to a tractor which was reversing across the yard. Mr Vnuk sought damages against the defendant insurer of the tractor. The Slovenian courts ruled against Mr Vnuk. The reasoning was that a compulsory insurance policy under Slovenian law for a motor vehicle covered use of the tractor as a means of transport but not damage caused when a tractor was used as a machine or propulsion device. The referral from the Slovenian Supreme Court was for the CJEU to determine whether the circumstances of the accident fell within the duty to insure the use of vehicles within the meaning of Article 3(1). The CJEU determined that the duty to insure did extend to the accident circumstances in this case. It found that the wording use of vehicles in Article 3(1) covers any use of a vehicle that is consistent with the normal function of that vehicle. The judgment made no specific reference to the duty to insure extending to private property (such as the farmyard in which Mr Vnuk was working) but it seems an inevitable conclusion that the court s view was that it did. In addition, the ruling could lead to a stream of cases dealing with how you determine the normal function of a vehicle and indeed how far the definition of vehicle extends. This leaves us with interesting questions in terms of the equivalent legislation in the UK. The equivalent duty in the UK is under the Road Traffic Act 1988 ( RTA 1988 ). The duty to insure under Part VI of the RTA 1988 only extends to use of a motor vehicle on a road or other public place. A motor vehicle is defined by section 185 as a mechanically propelled vehicle intended or adapted for use on a road (not or other public place ). Not only does the duty not extend to use of a vehicle on private property, the definition of a motor vehicle seems narrower than the normal function test. The relevant Directive is now the consolidated 6 th Motor Insurance Directive 2009 (2009/102/EC) which repeats the definitions from the First Directive. The definition of motor vehicle is wide covering any vehicle used on land save for where it runs on rails. The government faces potential Francovich damages claims from claimants who are deprived of damages because, for example, the accident happened on private land or the vehicle in question was not intended or adapted for use on roads. Insurers can rely on the wording of the RTA 1988, as can MIB, unless the court was able to use the Marleasing principle to read additional wording into the Act as it did in Churchill v Wilkinson in connection with Section 151(8). This seems unlikely given the clear words used Marleasing simply requires the court to try to construe domestic law in a way which gives effect to the intention behind European Directives, but it will only be able to strain the wording so far. The government is likely, therefore, to amend the Act. This would have wide reaching ramifications for insurers in terms of the type of vehicles to be compulsorily insured (and perhaps registered as such on the MID) and the need for RTA cover in non-indemnity situations (i.e. accidents occurring on private land).

7 Also, the police would have to take an interest in such incidents/vehicles and hence any changes will be more complicated by having to factor their role in. One option, due to the likely low incidence of this type of claim, might possibly be for MIB to cover such cases, but the ramifications would need to be thought through carefully. Certainly a number of previously uninsured vehicles will now potentially be in the frame including, for example, fork lift trucks, Segways, invalid carriages, sit on lawnmowers and many others. The ABI is looking at this issue and a consultation paper seeking views as to the implications of and answers to Vnuk is likely to be issued shortly by the DfT. Any queries on this case should be referred to David Holt at david.holt@weightmans.com. This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only. This update is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss, which may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans 2013 Data Protection Act Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to receive a variety of marketing materials including our legal update service, newsletters and invites to seminars and events. It details your name, address, telephone, fax, , website, mailing requirements and other comments if any. Please ensure you update our marketing team with any changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at 100 Old Hall Street Liverpool L3 9QJ.