PERSONAL INJURY Alert

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1 A weekly news bulletin from Greenwoods Issue 315: 20 June 2012 In this issue - Liability/RTA - Excluded liability/s151(4) road traffic Act Limitation/issuing a claim form - From within Greenwoods - When is a director of a company responsible for his own injuries? - Emplyers liability to safeguard employees from robbery - Successful defence of a claim by a cyclist at a cross roads Seminars - An audience with... - How Terms & Conditions in contracts can affect Subrogated Recoveries - Pensions Loss Training - Calculating Loss of Earnings Claims Using Ogden 7 Bristol One Redcliff Street BS1 6NP T London Bedford Square 18 Bedford Square WC1B 3JA T London Market Office 77 Gracechurch Street EC3V 0AS T Manchester 57 Spring Gardens, M2 2BY T LIABILITY/RTA The case of Scott v Symons [Lawtel 20/06/2012] illustrates the reluctance of the Court of Appeal to interfere with a judge s findings where there was a reasonable basis for them. The appellant/claimant had been injured when the motorcycle he was riding collided with a car driven by the respondent/defendant. He claimed damages, and the matter came before the judge on the issue of liability only, to determine whether the claimant or defendant had been driving on the wrong side of the road at the point of collision. Only the claimant gave live, oral evidence at trial. He contended that, as he approached the sweeping left-hand bend on which the accident occurred, he had been driving towards the middle of the road to give himself maximum visibility. He admitted that his right hand might have crossed over the centre line, but asserted that he had remained on the correct side of the road. He claimed that although he had not seen the defendant's vehicle cross over, the collision had to have been caused by the defendant wandering across into his lane. The defendant did not give evidence as he was 93 years old and not fit enough to attend court. The driver of a vehicle who had been in front of the claimant when the accident occurred was meant to give evidence, but did not attend the trial. His statement suggested that he had seen the collision in his rear-view mirror, and that the claimant had been on the wrong side of the road. He also stated that whilst he was stationary and waiting to turn right, the defendant had driven past him on the correct side of the road. The judge found that the claimant was a frank, honest and credible witness, but that his evidence was a matter of reconstruction rather than recollection. The judge gave no weight to the witness's evidence of what he purported to have seen in his rear-view mirror, but accepted the fact that the defendant's car had passed him on the correct side of the road as a key feature. He also took account of the claimant's admission that his right hand had strayed over the centre line. The judge concluded that, on the balance of probabilities, it was most likely that the collision had been caused by the claimant crossing onto the wrong side of the road. Dismissing the claimant s appeal the Court of Appeal held that there could be no dispute that, since the defendant had driven his car passed the witness s stationary vehicle, he had to have been on the correct side of the road at that point. Whilst he could have wandered over into the wrong lane afterwards, that would have to have happened quickly and without reason. The witness's evidence of the defendant passing him was a key feature of the evidence accepted by the judge, and one on which he was entitled to rely. The other feature relied on by the judge, arising out of the frankness with which the claimant had given evidence, was the admission that his right hand might have crossed over the centre line. If that was so, and the claimant was leaning to the left as he rounded the lefthand bend, his motorcycle had to have been over the central white line. That was an important admission and another feature on which the judge was entitled to rely. The judge had had to decide, on the balance of probabilities, what was most likely to have happened. His conclusion, based on those two essential and reliable features, was one which he had been entitled to reach. Milton Keynes 2 Eskan Court Campbell Park MK9 4AN T Southampton 3600 Parkway The Solent Centre Solent Business Park Fareham PO15 7AN T EXCLUDED LIABILITY/S151(4) ROAD TRAFFIC ACT 1988 In the case of Stych v Dibble and Tradex Insurance Co Ltd The claimant had been given a lift home from the (2012) EWHC 1606 (QB) the court was required to garage at which the first defendant worked, in a car determine as a preliminary issue whether, at the time of belonging to a customer. An accident occurred in which a road traffic accident in which the claimant was injured, the claimant sustained a spinal injury resulting in he had known or had had reason to believe that the car tetraplegia. He claimed damages from the first in which he was a passenger had been stolen or was defendant. The first defendant did not enter a defence unlawfully taken within the meaning of S151(4) Road and judgment in default was entered against him. Traffic Act The claimant also sued the second defendant, who was Personal Injury l Property & Construction l Insurance l Commercial & Financial Risks l Fraud l Health & Safety l Motor Prosecutions

2 Page 2 of 5 EXCLUDED LIABILITY/S151(4) ROAD TRAFFIC ACT 1988 Cont d the vehicle's insurer, for damages and a declaration that it was liable to meet the judgment obtained against the first defendant pursuant to S151(2)(b). Since the first defendant had not been authorised to use the car, he was not covered by the customer's insurance policy. However, provided that his liability to the claimant was not an excluded liability for the purpose of S151(2)(b), it would be covered by the second defendant's all persons insurance. The question whether the second defendant was liable to pay the claimant the sums recovered under his default judgment against the first defendant depended on whether the judgment related to an excluded liability as defined by S151(4). The claimant contended that he had assumed that the first defendant had been permitted to drive customers cars. The first defendant submitted that the claimant had known that he had taken the customer's car without permission and with the intention of taking it for a joy ride the next morning. Finding in favour of the claimant, the High Court judge held that in order to discharge the burden of proving that the liability which the default judgment relied on was an excluded liability, the second defendant had to prove that the claimant had known or had reason to believe that the car had been stolen or unlawfully taken. The 1988 Act had been enacted to implement Directive 84/85, which was subsequently consolidated in Directive 2009/103. Section 151(4) had to be construed as far as possible so as to fulfil the United Kingdom's obligations under the Directive, in which the requirement of knowledge to exclude liability was a requirement of actual knowledge or "blind eye" knowledge, consisting of suspicion accompanied by a deliberate refraining from asking questions. The central issue in the present case turned on whether the claimant was telling the truth about what happened or whether he was lying and the first defendant's evidence was correct. The claimant was a very impressive witness who was honest and credible, whereas the first defendant was an unsatisfactory witness and not reliable. Where their testimony was in conflict, the claimant's evidence was to be preferred. The first defendant was known by the claimant to have driven cars belonging to customers, both in the garage and for short distances out on the road. If the purpose of the lift the claimant had taken was simply to go the short distance home, rather than to take the car for a joy ride as the defendant alleged, it was plausible that it had not occurred to him that, if asked, the owner of the car would not have permitted the first defendant to drive him home. Accordingly, the claimant had not known when he allowed himself to be driven by the first defendant that the car had been taken without permission and driven unlawfully. Nor had he suspected that to be the case and deliberately refrained from asking questions lest his suspicions should be confirmed. It followed that the first defendant's liability to the claimant was not an excluded liability within S151(4). LIMITATION/ISSUING A CLAIM FORM Although not a personal injury case, Page and others v Hew and another (2012) EWCA Civ 805 is relevant to all classes of action. Readers will be aware that for limitation purposes it is not necessary for a claim form to have been issued before the due date provided that the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court. The claim is then brought for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date [PD 7 5.1]. The claimant/appellants were beneficiaries under a will. The first respondent/defendant firm of solicitors acted for them in the administration of the estate. The second respondent was employed by the first respondent. He was instructed by the claimants in relation to a sale of a property in the estate. Unknown to the claimants, the second respondent carried on business as a property developer through a company and recommended that the claimants sell the property to a second company, which had agreed to pay the second respondent s company a share of the future profit or a fee. The claimants later discovered that the property's true value was higher than the sale value. In 2000 they complained to the Office for the Supervision of Solicitors about the conduct of both respondents. They later began proceedings against both of them for breach of duty and negligence. The claimants new solicitor gave evidence that the drafting of the claim form and particulars was completed in December 2008 and that bundles were sent to the court by DX at that time. He claimed that the reason the claim form showed a date of February 2009 was that the forms were lost by the court and a fresh claim had to be issued. The Master held that the claimants' letter to the OSS showed that they knew enough to start time running and that he was not satisfied on the balance of probabilities that the claim form did not reach the post room or the registry, so that time began to run from 2000, bringing the claim outside the Limitation Act On the claimants first appeal the judge upheld the Master's findings and dismissed their claim. On the claimants further appeal the Court of Appeal held that the Master had applied the wrong test. The question was not whether he was satisfied on the balance of probabilities but whether the claimants had no real prospect of showing that the documents arrived at the court office. The Master and judge also assumed that the systems that should have been followed were in fact followed. However it was not unknown for the court to mislay important documents. On an application for summary judgment the court must consider not merely the current state of the evidence but also what evidence might reasonably be expected to be adduced at trial. The court had to approach the question on the footing that there was a real prospect that the claimants would show that documents put into the DX were delivered at least as far as the court's post room and perhaps as far as the registry. The main issue before the judge was whether the "claim form as issued" must be the same piece of paper as that received in the court office within the limitation period. The master and judge held that it must, with the consequence that the claimants could not rely on the "lost" claim as bringing forward the date on which the action was brought. This was the wrong subject matter to debate. When an action was 'brought' for the purpose of the Act was a question of construction of the Act. It was not a question of construction of the Civil Procedure Rules or of a practice direction. A claimant's risk stopped once he had delivered his request to the court office. Practice Direction 7 could not alter the correct construction of the Act and a would-be litigant was not responsible for any shortcomings of the court. If therefore, the claimants established that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, the action would not be statute barred. The Master and the judge were wrong to summarily reject the new solicitor's evidence and the judge's order was set aside.

3 Page 3 of 5 FROM WITHIN GREENWOODS When is a director of a company responsible for his own injuries? Surprisingly there are very few reported decisions dealing with this issue. A company director owes a non delegable duty to comply with the health and safety regulations (although the director can ask another employee or outside agency to consider and put in place systems to comply with the regulations). This issue was recently considered at a trial in Brighton County Court. The director of the company was helping one of the employees to carry out an MOT test. The director was raised in a vehicle on a ramp to operate the controls of the vehicle for the testing to be done and at the end of the test should have been lowered on the ramp to exit the vehicle. Unfortunately the ramp did not lower immediately as the equipment which would lower it failed to work. The director decided to get out of the vehicle and as he was in the process of trying to lower himself to the floor sustained injury. He then sued the company. The director was a sole director of the company at the time of the injury. It was argued that as the sole director, he was in effect the defendant and was therefore suing himself. No allegation of vicarious liability was made against any other employee of the company. The judge found: 1. The company is a separate legal entity and the corporate veil applies. The company can be primarily liable for breach of Regulation 5 (1) of the Provision and Use of Work Equipment Regulations Despite the director s suggestions to the contrary, he ran the business. 3. In this case, the company was primarily liable for a breach of Regulation 5 (1). 4. However the director was 100% contributorily negligent because: a) There was no risk assessment and if one had been done systems could have been put in place to prevent such an injury occurring. b) The director never considered nor paid any attention to health and safety issues generally. c) The director had not put in place any systems of service, maintenance nor inspection of the equipment that failed. d) There was no evidence before the court that the defect would not have been revealed by servicing, inspecting or regularly maintaining the equipment. e) Therefore the director was responsible for the breach of Regulation 5 (1). The success of defending liability in these types of cases depends on the facts. If you require any further information concerning this decision please do not hesitate to contact Melanie Lewis ( ) mal@greenwoods-solicitors.com. Employers liability to safeguard employees from robbery The case of Waller v William Hill came to trial on the 7th and 8th June 2012 at Wandsworth County Court before His Honour, Judge Welchman. This case related to a trainee cashier who had undergone two days of initial training. She was on probation and was continuing her training at the defendants' premises in Vauxhall. The circumstances that gave rise to the claim were that she had been left alone temporarily whilst her manager went to move her car. it was in the evening and it coincided with the arrival of men in balaclavas with shotguns, who came to the till and pointed the guns at the claimant demanding money. She retreated to the kitchen as she feared for her life. She claimed that as a result of this incident, she suffered PTSD. The defendants denied liability on the basis that they had taken reasonable steps as employers to ensure the premises were kept and maintained in a reasonably safe condition for its employees by ensuring they had adequate training, that their shop was installed with alarms, panic buttons, a magnetic lock system, CCTV, blast counter screen and had also provided a safe haven in that their employees were trained to retreat to the safe haven, in this case, the kitchen, in the event of a confrontation. The defendants requested liability be heard as a preliminary issue. After the conclusion of the claimant's case, the defendants took the decision on the basis of having heard the evidence and in particular, the claimant's security expert, that a submission of no case to answer should be argued. In making his findings, the judge said that the appropriate question that a judge needs to answer in a case like this, was whether there was a case to be put in the first place? Was there a real prospect of success? He noted that the claimant's case had shifted slightly, as initially the case had been put on the basis the claimant should not have been left alone, thus exposing her to risk of injury and the fact of being alone had contributed to her injury. It was eventually conceded by the claimant's expert that the fact of being alone made no difference as to whether the robbery took place or not. The claimant's expert had also conceded that the security measures the defendant company had in place were appropriate and adequate and that everything had been done that should have been done and yet even with those measures in place, the robbery could not have been prevented. The Judge noted the risk assessments were undertaken shortly before the accident and that all the appropriate measures were in place. The Judge went on to say that one should consider whether there could be any criticism of the defendant. The claimant had stated in evidence that had she been aware of the robberies, she would not have worked there. The Judge ruled that this was an overly high burden for the defendant to have to discharge and in his opinion, was unreal. The Judge went on to say that to establish liability the claimant had to prove that the defendants were in breach of duty and injury must result from that breach. In concluding he opined that there was no realistic prospect of the claimant succeeding in her claim, as she had not established any breach of duty on the part of the defendant.

4 Page 4 of 5 FROM WITHIN GREENWOODS Cont d This is now another successful defence of an employer in relation to robbery in a betting shop. The duties for a betting shop are measured not just by industry standards, but also by reference to all retailers and employees who have to deal with money and members of the public. The court did consider in general evidence the suggestion that there should be air locks into the premises but found it to be inappropriate due to the fact that this would not be reasonable for normal retailers. Furthermore, such security for shops was inappropriate also, as this is not something that was done routinely either in shops or banks. There was, therefore, a wider interest in the outcome of the case, as it could affect the way employers look to protect their staff in the retail business generally. For further information please contact Christine Winter ( ) cw@greenwoods-solicitors.com Successful defence of a claim by a cyclist at a cross roads Ede v Whitwood (High Court 19/04/2012) The case of Ede v Whitwood, heard in the High Court on 19 April 2012, involved a road traffic accident which occurred on 29 June 2006 on the B1145 Holt to Norwich road. Our client s insured, the defendant, was driving her car along the main road when she approached a cross roads with a minor road on each side. The junctions with the minor roads were slightly offset, with that to the offside slightly closer to the defendant s direction of approach than the road to the nearside. The main road was governed by a 60 mph speed limit. The defendant s visibility into the junctions was impeded by crops growing in the adjacent fields. The claimant was a sixteen year old girl riding a borrowed mountain bike which was intended for an older male and which was therefore too big for her. She approached the junction from the defendant s nearside intending to cross the main road and ride into the opposite junction. Knowing the road well and seeing a stationary car waiting in the offside, the defendant reduced her speed as she approached the junction. However, as she started to drive through the cross roads, the claimant rode out into the path of her car and sustained serious injury. Before looking at the circumstances of the accident the judge dealt with a number of allegations made by the claimant which were directed at the defendant s concentration. First its was suggested that the defendant was either using her mobile phone while she was driving or that she had made a call so close to the time of the accident that she must have been speeding to arrive at the junction point of collision as soon after the call as she had. With the assistance of the evidence of a local police officer the judge rejected these allegations on the basis that it was possible for the defendant to conclude her call while stationary, and still reach the scene, from where the call had been made, while travelling at a reasonable speed. However, the judge indicated that even if he had found that the defendant had been using her mobile phone and speeding shortly before the accident that would not have affected his judgment on liability. There was also what the judge described as a slightly half-hearted attempt to suggest, in evidence, that as the defendant had drunk a white wine spritzer with her lunch, a short time before the accident, that may have affected her reactions. Again the judge rejected the allegation as having no material relevance. The parties experts agreed that the defendant s speed at the point of impact was 45 mph but it was the claimant s case that, in all the circumstances, the speed was still excessive, given in particular, the limited visibility into the junction. The defendant accepted that she had seen the claimant only as she reached the mouth of the nearside junction. The cyclist was to her nearside and then almost instantly directly in front of the car and the claimant had appeared to be standing on the pedals, as if generating speed to move the cycle along. The parties expert witnesses disagreed as to the point of impact, with the claimant s expert relying on debris to make his calculations and suggesting that the claimant had crossed the white line in the minor road into the oncoming lane and then gone into the main road at a diagonal. However, the judge found that this approach was inconclusive and that it was safer to assume that the claimant would have stayed in her own lane and followed a normal course to navigate the junction. On the evidence the judge found that the claimant s probable course was from a position towards the centre of the nearside junction aiming towards the nearside of the offside junction, thus taking a straighter line than would otherwise have been the case and placing her closer to the defendant s car. The experts put the claimant s speed at between 4.4 mph and 8 mph but the judge concluded that at the material time she was probably travelling at an average of nearer 5 than 6 mph from the point of visibility to the point of impact. The judge found that visibility for a driver approaching the junction was 5 metres back from the giveway line from 50 metres away. The claimant would have travelled a further 2.5 metres from the giveway line to the point of impact. It was therefore possible for a driver travelling at 45 mph to see a cyclist in the junction when 57.5 metres from the point of impact. With a normal reaction time of 1.5 seconds theoretically it was possible for the driver to react, brake and stop some 6 metres short, avoiding the collision. However, he went on to find that would be setting too high a standard, almost perfectionist. His view was that the reasonable driver would perceive the claimant as someone who was slowing and likely to stop (as had the driver of the other car) and it would not be incumbent on the defendant to commence an emergency stop. The judge rejected the claimant s suggestion that to comply with the Highway Code the defendant should have slowed to 40 mph or less. The law did not require a reasonable driver to assume and plan at all times for the very worst that could possibly happen in a normal road situation. For further information please contact Jane Hall ( ) jsh@greenwoods-solicitors.com

5 Page 5 of 5 Events Greenwoods holds a series of training events for both our lawyers and interested clients. Below are those events being held in the next few months. If you would like to attend any of the following events please crm@greenwoods-solicitors.com, indicating which you are interested in attending. An audience with... A chance for our lawyers and interested clients to put questions to an expert or other professional with whom regular contact is on a more formal basis. 11 July 2012 An audience with Mr John Nixon (Orthopaedic Consultant), London. Registration at 17.45, session , followed by refreshments. 18 September 2012 An audience with Tim Young (The Surveillance Group), London. Registration at 17.45, session , followed by refreshments. 13 November 2012 An audience with Richard Nieveen (Prosthetics Rehabilitation), London. Registration at 17.45, session , followed by refreshments. All the above will take place in Greenwoods London Market Office at 77 Gracechurch Street, London EC3V 0AS unless otherwise indicated.. Seminars HOW TERMS & CONDITIONS IN CONTRACTS CAN AFFECT SUBROGATED RECOVERIES Date Time Location Speaker(s) 28 June Gracecurch Street Parishil Patel London Essex Street EC3V 0AS 39 PENSIONS LOSS TRAINING Date Time Location Speaker(s) 10 July Gracechurch Street David Rabinowitz London FAS Partnership EC3V 0AS CALCULATING LOSS OF EARNINGS CLAIMS USING ODGEN 7 Date Time Location Speaker(s) 12 July Eskan Court Geoff Owen Campbell Park Greenwoods Milton Keynes MK9 4AN

6 Page <#> of 4 Further information For further information on any of the issues dealt with in this Alert, other than where a contact has been provided, please contact Geoff Owen on T or E. gro@greenwoods-solicitors.com To subscribe or unsubscribe from this Alert, please crm@greenwoods-solicitors.com Other Greenwoods publications Greenwoods produces a number of regular publications on various topics, namely: PROPERTY, CONSTRUCTION & INSURANCE REVIEW (Monthly) MOTOR CRIME FOCUS (Quarterly) FRAUD REVIEW (Bi-monthly) H & S REVIEW (Quarterly) MARINE INSURANCE REVIEW (Quarterly) If you would like to subscribe to any of the above publications, please crm@greenwoods-solicitors.com, indicating which you would like to receive. The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Greenwoods is a firm of solicitors regulated by the Solicitors Regulation Authority in England and Wales. You can access the rules which regulate our professional conduct at: Greenwoods Solicitors 2012