to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover:

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1 Headlight motoring news welcome to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover: case summaries contributory negligence Gray v Gibson [2014] Train v Secretary of State for Defence [2014] fraud Mitsui Sumitomo Underwriting at Lloyds Ltd v Khan & Others [2014] hire Karl Stevens v Equity Syndicate Management Ltd [2014] Zurich Insurance plc v Sameer Umerji [2014] paramedics Director of Public Prosecutions v Michael Issler & Mordechai Bamberger [2014] pedestrian Ramirez v Maheshwari [2014] road rage Victor Keith Cridland (by his Litigation Friend, David Srickland) v Stagecoach (South) Ltd [2014] article The Ministry of Justice s Whiplash Reform Proposals summer 2014 edition

2 Gray v Gibson [2014] The appellant, G, appealed the decision that she was 40% contributory negligent for a road traffic accident that involved herself and the respondent, X. At the time of the incident, G had been driving her vehicle along a single carriageway country lane within the speed limit. X was driving a lorry in the opposite direction and whilst traversing a bend, encroached into G s lane and collided with her vehicle. During a case management conference, the district judge advised that he considered that his starting point on liability would be to consider that each party was equally responsible until he saw what he made of them. The appeal was upheld. It was unfortunate that the judge had said that his starting point would be 50/50 as it was not sufficiently clear within his judgment what was taken into account in order to vary that initial opinion. The credibility of X did not help to decide whether G was negligent in her actions. The judge accepted that G was familiar with the road and frequently met and passed large vehicles travelling in the opposite direction. He did not consider whether she would expect to meet a lorry crossing over 2 feet into her side of the road. G could not be held responsible for failing to foresee this course of events. It should be considered that if X crossed that far over into the other side of the road, he should have taken precautions to prevent a possible accident by travelling at a speed that would allow him to stop within a short distance if he met another vehicle. X was considered to be 100% liable for the incident. Despite finding that X was unreliable with regard to evidence of his speed and that X had been further out from the verge than G, it was decided that G was 40% contributory negligent for travelling at 30mph around the bend, which the district judge deemed to be too fast, although within the speed limit. Train v Secretary of State for Defence [2014] The claimant claimed damages for the death of her husband, T, following a road traffic accident involving the defendant s minibus, which was being driven by a solider, K. 1

3 T had been riding his motorcycle along a road on a barracks when K, who was driving in the opposite direction, turned right across T s path in order to enter a petrol station, resulting in the collision. K conceded that he had seen T prior to making the right turn, but had considered that he had sufficient time to complete his manoeuvre as T was some distance further down the road. Witnesses at the scene stated that T had been travelling at speed, certainly over the 20mph speed limit, and glanced to the left immediately prior to the collision. T had right of way and K should only have turned if he considered that it was safe to do so. K was consistent throughout his evidence that he had observed T, but that due to the distance between them, he believed that there was sufficient time to turn without resulting in a collision. Mitsui Sumitomo Underwriting at Lloyds Ltd v Khan & Others [2014] The applicant, M, applied for the respondents, K, W and X, to be committed for an attempted fraud carried out during the course of a personal injury claim. K made a claim for injury resulting from a road traffic accident that occurred in K was knocked off his bicycle and sustained head injuries, from which he subsequently fully recovered. With the help of his wife, W, and his litigation friend, X, K exaggerated his injuries for the purposes of financial gain. He concocted an elaborate fraud, which resulted in 4 medical experts concluding that he had permanently impaired cognitive function. 24 hour a day professional care was claimed, along with specialist equipment and modifications to his property. It was held that K should not have turned before he was satisfied of the speed that T was travelling at. If he was unsure, he should have waited for T to pass prior to turning. As a result of T s excessive speed and glancing to the left, T was the principal, but not sole, author of his misfortune. T s damages were reduced by 80% to reflect this. K s claim for care was supported by false statements from W and X. 2

4 K s fraudulent statements were discovered when M obtained surveillance footage which confirmed that by October 2010, K was functioning normally and was capable of fulltime work. Fraud was admitted. As K, W and X were all co-conspirators in the fraud, the starting point when considering sentencing was that they all played an equal role. When the issues were considered further, it was determined that W played a lesser role than K and X, and consideration was given to her having a 15 month old daughter. W was given a 7 month sentence, suspended for 2 years. It was found that X, as litigation friend, actively participated in the fraud to the same extent as K. Both were given sentences of 9 months immediate imprisonment. The repairs started 9 days after the commencement of the hire. The daily rate amounted to , inclusive of vat. The trial judge found that the appellant was not impecunious in that he would not have been exposed to an unreasonable burden financially had he hired a car directly. He determined a daily basic hire rate of 75.62, inclusive of vat, by averaging the rates charged by 4 hire companies at different locations local to the appellant. He also determined the reasonable period of hire at 19 days. The appellant claimed that the judge should have concluded that he was impecunious; alternatively, he should have identified a single basic hire rate, rather than averaging rates and, thirdly, that he was wrong in determining the reasonable period at 19 days as the car had to be stripped first to determine the parts required, which then had to be ordered. Karl Stevens v Equity Syndicate Management Ltd [2014] The appellant appealed against an assessment of damages. The driver of a car, insured by the respondent insurer, had collided with the appellant s car and liability was not in issue. The appellant s insurers had referred him to a credit hire company, who made arrangements for the repairs to his car and hired an alternative car for the appellant for 28 days whilst his car was at the garage. On appeal, it was held that the evidence of the appellant s means was unclear. His bank statements showed little activity and could not have reflected his total economic activity. It was held that the trial judge was entitled to base his conclusion on the continuous healthy balance in the appellant s account. 3

5 It was also found that the trial judge had erred in averaging the hire rates from 4 national organisations, Whilst the appellant was able to hire a car, he was not especially affluent, had expressed his disinclination to spend more than was necessary, and would have hired with a nil excess from a reputable local company. Nevertheless, the correct approach to reflect these factors would have led the judge to a figure only slightly less than the actual figure selected and so the error had not caused any detriment to the appellant. As for the period of hire, there was no evidence that once the car had been stripped, it could have been reassembled for continued driving until the parts arrived. It was found that there was no failure to mitigate and the appellant was entitled to a further 9 days hire at the rate identified by the judge. Appeal allowed in part. He claimed that he was unable to buy a replacement car until the appellant insurer had paid the pre-accident value of his old car. The judge gave directions for trial and set a deadline for the respondent to confirm whether he intended to allege that he was impecunious at the time of hire. The respondent did not do so and an order at the next hearing contained a recital recording that the respondent was debarred from relying on impecuniosity. The trial judge concluded that impecuniosity went to the question of credit hire, not duration of hire, and awarded damages for the entire period of hire. He also held that the respondent had acted reasonably in storing the car for 4 months. The appellant submitted that the respondent was debarred from relying on impecuniosity for any purpose and that he should have disposed of his vehicle as soon as he knew it was a write off. Zurich Insurance plc v Sameer Umerji [2014] The appellant insurance company appealed against a judgment in favour of the respondent in the sum of 101,559. The respondent claimed against another driver, insured by the appellant, after his car was damaged in an accident. The respondent s car had been written off and he entered into a series of credit hire agreements for replacement cars, incurring fees of 95,000 over a year and a half, together with recovery and storage charges for his old car over 4 months. On appeal, it was held that the trial judge had been wrong. The respondent had been debarred from asserting that he could not afford to buy a replacement vehicle and it followed that he should only have been entitled to recover hire charges up to the date when he should reasonably have bought another vehicle. 4

6 It was reasonable for the respondent to wait until his car had been disposed of for scrap and could have bought a replacement within a fortnight. Damages for hire charges were, therefore, awarded in respect of the period ending 2 weeks after disposal of the car. However, the appeal in relation to storage charges was dismissed as the respondent s solicitors had made it clear that storage charges were accruing, but had received no reply, despite sending 2 chaser letters. Appeal allowed in part. Director of Public Prosecutions v Michael Issler & Mordechai Bamberger[2014] The DPP appealed against a judge s decision to dismiss information laid against the respondents who were trained paramedics. These paramedics volunteered for an organisation which provided emergency first aid cover, and whilst their vehicles carried a considerable amount of equipment, they were not designed to carry patients to hospital. On 14 October 2012, they drove to the scene of an accident with their blues and twos sirens on and offered medical assistance until the NHS ambulance arrived. They were later charged with offences of using a motor vehicle fitted with a siren and using a motor vehicle fitting with a blue warning beacon contrary to various statutory provisions. The judge concluded that conveying medically trained personnel to an emergency scene was very much a purpose of an ambulance and found that the paramedics were entitled to benefit of the statutory exemption under regulation 37(5) of the Road Vehicles (Construction and Use) Regulations 1986 and dismissed the summonsed offences. The DPP submitted that the judge failed to properly apply the test laid down in Lord- Castle v DPP [2009], where focus had to be on the core activity of the vehicle in question. The judge in that case did not specify an exhaustive list of relevant factors, but if the core activity was not the conveying of injured persons, then the exemption could not apply. Equally, if the core activity was the carrying of medical personnel to a scene, the exemption did not apply either. Given that the judge held that the core activity of the paramedics was the transportation of medically trained personnel to an accident, rather than conveying sick, injured or disabled persons, it was impossible to uphold the original decision on the application of Lord-Castle. It was expressed that whilst the outcome of the appeal was not desirable and there was a strong case for widening the exemption, this was a task for the Secretary of State and for Parliament, if so advised, and not a task for the court. Such an update would require not merely overturning Lord- Castle, but could not properly be achieved in view of the existing regulatory language. Appeal allowed. 5

7 Ramirez v Maheshwari [2014] The claimant pedestrian claimed damages for injuries sustained in a road traffic accident said to have arisen from the negligence of the defendant driver. On the day in question, the weather conditions were sunny, the ground was moist and the sun was low in the sky, which caused some reflection from the road. The claimant wanted to cross the road to reach her partner who was in a stationary vehicle which was just ahead of a bus. The defendant was driving in the same direction along the road and proceeded towards the rear of the bus. The traffic was slow moving, stationary at times, and the defendant drove into the gap between the oncoming line of cars and the bus. The claimant emerged from that gap and the two collided. The accident was captured on CCTV. The defendant s evidence was that he was travelling at 15mph towards the bus, his vision had not been compromised by the weather conditions and that he had checked his left hand side before driving into the gap. One eye witness gave evidence at trial that the claimant came out of nowhere and another gave evidence that the claimant had been looking behind her and had run into the road without looking. The claimant submitted that the dazzle of the sun in the road was the reason that the defendant had not seen her and so should have been travelling more slowly. The court held that it was not without significance that neither eye witness had spoken of the sun. It was found that the claimant would have been visible to the defendant for only a short space of time, which would not have allowed him to take action to avoid hitting her. The weather conditions had not affected the accident, which had been caused by the thoughtless manner in which the claimant had entered the road. Victor Keith Cridland (by his Litigation Friend, David Srickland) v Stagecoach (South) Ltd [2014] The claimant, C, made a personal injury claim for damages against the defendant, S, arising from a road traffic accident. C was a passenger on a double decker bus that was driven by W, an employee of S. Heading in the same direction and ahead of the bus was a youth, Y, riding a push scooter in the carriageway. W slowed to take Y s presence into account and sounded his horn to alert Y to his position and encourage him to move aside to allow W to pass. 6

8 Y s reaction consisted of an unexpected gesture which suggested that he would throw his scooter into the vehicle s windscreen. W was required to take action to avoid any collision in the form of heavy braking. C suffered injuries as a result of this sudden braking. C s litigation friend, D, had also been on the bus at the time of the incident. D alleged that W had been making rude and abusive gestures at Y prior to the incident and allowed himself to become annoyed with Y. W s evidence was preferred over D s. The evidence of the other passengers on the bus was consistent with W s evidence regarding the behaviour of Y and did not criticise the actions of W. It was held that no reasonable driver could have prevented the behaviour of Y and that he acted appropriately and reasonably in braking in response. The accident was deemed to have been caused by Y s anti-social behaviour and the claim was dismissed. ARTICLE The Ministry of Justice s Whiplash Reform Proposals Introduction There has been significant political, media and consumer interest in tackling the compensation culture over the past few years. The Government has made the reform of civil litigation funding and costs a priority, with significant changes to the personal injury claim process coming into force last year. Following these reforms, car insurance premiums have reduced substantially, however, in order to sustain these reductions, and with whiplash claims still costing insurers over 2 billion per year, the Ministry of Justice has consulted on further substantive reform of the civil litigation system arising from the Government s whiplash reform implementation programme. The Government hopes that its latest plans to reduce the number of whiplash claims in England and Wales will produce results. Whilst there was a strong case for increasing the small claims track for personal injury claims, the Government considered that there is still further work to do to provide robust safeguards for genuine claimants in personal injury claims involving road traffic accidents and the Government wishes to allow time for the changes to the Ministry of Justice Protocol and accompanying fixed recoverable costs regimes to settle before consideration is given to increasing the small claims limit for road traffic accident claims. 7

9 In the interim, the Government recognises that more is needed to discourage fraudulent claims. In January 2014, Ministers hosted a series of roundtable discussions with key representatives following the publication of the Government s whiplash programme. Following this, the Ministry of Justice formed a core steering group with medical and legal sub-groups to provide further assistance with the implementation of these reforms. Writing to the group in March 2014, Lord Faulks directed them to consider the development of options for a system of fixed costs in the Civil Procedure Rules for the provision of medical reports. In response to this direction, a consultative letter has now been published which seeks views from stakeholders on the proposals developed by the Ministry of Justice and the working groups on fixed costs for medical reports and related issues. The Proposals The Government s proposals will apply to soft tissue injury claims which will be defined in the RTA Pre-Action Protocol as follows: Soft Tissue Injury Claim means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury. Defining the types of injury to which the new rules might relate has been a challenge in order to avoid them being circumvented by changes in terminology or the introduction of collateral symptoms. The definition has been widely drafted with a view to avoiding problems highlighted by earlier consultations. However, there is still scope for argument around what constitutes a minor psychological injury and what is to be done where the relative severity of symptoms is unclear. It is also notable that the proposed definition is not limited by reference to injuries to the neck and/or back and is, therefore, more widely defined than what many might consider a whiplash injury. The Government s key proposals for reform include: Improvements to medical reporting practice and ensuring the independence of medical reports. Fixed fees for reporting medical experts. Information to be provided to the medical examiner. The prohibition of pre-medical offers. 8

10 Medical Reporting Practice It is accepted by the Government that the number of claims for whiplash is currently too high and that a proportion of those claims are either fraudulent or exaggerated. It is also widely recognised that a number of medical reports that are provided in support of such whiplash claims are of poor quality, that there is a need to improve standards generally and that there needs to be an end to any real or perceived financial incentive for doctors to make a particular clinical finding. Accordingly, it is proposed that a more rigorous medical assessment into the claims process will be introduced, thereby providing a more secure diagnosis of whiplash. One of the main strands to the overall reform package is the proposed creation of independent specialist medical panels, which will be open to all suitable practitioners, and the introduction of a system of monitoring, peer review and sanctions for adverse behaviour. A simplified standard form medical report is also suggested. These measures are intended to address the perceived lack of accountability for those providing medical reports. The panels would be run by an independent board with crossindustry representation and would be selffunding. The board s powers would include accrediting experts, reviewing and auditing their performance data and suspending or removing accreditation where necessary. It is, of course, vital for any type of personal injury claim that accurate medical evidence is obtained at proportionate cost. Accordingly, a new fixed costs regime would also be introduced in conjunction with the aim of helping to remove the financial incentive to provide a report with a particular conclusion. Claimants will be expected to obtain a fixed costs medical report, although they appear to be free to choose from 3 specialisms; namely, a GP, consultant or orthopaedic surgeon or member of the Chartered Society of Physiotherapy. The proposed costs are 180 per report for a GP or physiotherapist or 420 for an orthopaedic surgeon. Where the report is obtained via an intermediary, neither the claimant nor defendant may have direct or indirect financial interest in that intermediary. Additional reports may only be obtained where they are recommended in the first fixed cost medical report, limiting the risk of a proliferation of experts. It is recognised that one cannot expect the medical practitioners to become judge and jury in terms of deciding whether or not a diagnosis is made out based on the evidence presented to them, but during the consultations, defendant insurers raised concerns about the information that they might be able to pass to experts before they provide their first report. It is proposed that a defendant will have the opportunity to put forward an alternative version of how the accident occurred, even when liability is admitted. Further, the defendant could, it if is considered necessary, attach details of the accident mechanics, such as the invoice for repairs to the vehicle or any relevant photographs. 9

11 There is currently no mention of experts being required to consider a claimant s medical history, whereas insurers would obviously like experts routinely to see medical records. It has been proposed that where there is a prognosis of more than 9 months, or where the defendant considers it necessary for another reason, a claimant s medical records should be reviewed by the medical practitioner. sanctions and it is hoped that the amendments will provide compensators with an incentive to move away from the practice of making offers prior to the receipt of medical evidence in the absence of any evidence in support of a claimant s injury. Pre-Medical Offers As part of the consultation response, Justice Secretary Chris Grayling said he wanted insurers to end the practice of making offers to settle claims without requiring medical evidence. Proponents of pre-medical offers will argue that they can achieve significant savings by being proactive and avoiding legal costs if the tactic is developed properly. Further, the benefit of asking for a medical report on an injury which has no objective test, and which has little chance of coming back with a diagnosis other than for whiplash, and which will add over 10% to the cost of the claim, is questionable. However, on the other hand, pre-medical offers are considered to mean that fraudulent claims are less likely to be tested and detected, and ending a process that has no proper checks and measures, and which is, therefore, open to abuse is ostensibly sensible in principle. In an attempt to continue to tackle fraudulent and exaggerated claims, amendments to Part 36.10A and Part 36 14A of the CPR mean that an offer made before the fixed costs medical report is obtained does not attract the usual Responses Given that there remains no objective test for whiplash, combined with the number of vested interests in the wider claims industry, the Government s proposed reforms to tackle whiplash claims may not deliver the outcomes that are hoped for. However, the Government appear to be committed to implementing further reforms to try and help tackle the whiplash epidemic and recognise that the reform measures specific to whiplash claims go hand in hand with wider reforms. Responses to the consultation were due by 28 May 2014 and the responses will be considered before amendments to the Road Traffic Accident Protocol and Civil Procedure Rules are finalised and presented to the Committee at its July meeting, for implementation in October. 10

12 If there are any topics you would like us to examine, or if you would like to comment on anything in this bulletin, please the editor: Simon Evans at One Kingsway Cardiff CF10 3DS Tel : Fax : This update is for guidance only and should not be regarded as a substitute for taking legal advice. Dolmans 11