Insight from Horwich Farrelly s Large & Complex Injury Group

Transcription

1 Insight from Horwich Farrelly s Large & Complex Injury Group Issue #19 17 June 2016 Alexander House 94 Talbot Road Manchester M16 0SP T F Page 1

2 Welcome to this week s edition of Insight. In this week s edition we look at cases relating to Liability for an RTA involving a pedestrian The late introduction of additional expert evidence We also look at what to expect once the dust settles after the referendum. Should you have any feedback or comments please do not hesitate to contact me at malcolm.henke@h-f.co.uk. Malcolm Henke, Partner & Head of LACIG RTA - Liability At the first instance trial in Scott v Gavigan (2016) EWCA Civ 544 the County Court judge had found that the claimant pedestrian was entirely to blame as he had been in an alcohol-induced state and had run across the road into the path of the defendant s moped. He also found that the defendant driver had been negligent in failing to slow from 30 mph to 20 mph, in which case he would probably have missed the pedestrian, even though there was a real possibility that he would have crashed himself. The judge found that the risk of a pedestrian crossing the road in such a manner was not foreseeable. The claimant appealed the judge s decision on liability. He did not have permission to appeal the judge s findings of fact. The claimant submitted that the judge had erred in finding that his gross carelessness, fuelled by excessive alcohol consumption, was so wholly unreasonable that it (1) eclipsed any wrongdoing of the defendant; (2) constituted a new intervening cause between the defendant's negligence and the injury suffered. The defendant argued that the judge had been correct, except in respect of his finding of negligence based on the speed at which he should have been travelling. Dismissing the appeal, the Court of Appeal held that the judge had been entitled to hold that it was not reasonably foreseeable that the claimant would run out into the road, at an angle, towards the defendant and into the path of his moped. However, he had erred in finding the defendant negligent for not travelling slower than he had. It was dusk but the street lights were on. It was dry, visibility had been very good and the defendant could see a considerable distance ahead. He was paying attention and there was no apparent danger. It had been open to the judge to find that if the defendant had been travelling 10 mph slower he would have missed the pedestrian but, given the factual findings and his Page 2

3 conclusion on lack of foreseeability, his finding of negligence on the part of the defendant could not stand. It was doubtful that the claimant s behaviour was a new intervening act. Although recklessness could be sufficient to break the chain of causation, it should be exceptional for a claimant who had surmounted the hurdles of foreseeability, negligence, and causation to be denied any remedy. It was unfortunately not that uncommon for a claimant to run out into the road carelessly or recklessly. A defendant who collided with such a claimant might not be held negligent, or the claimant might be found contributory negligent to a high degree. However, the reason for imposing liability on a defendant was because he should have foreseen a risk and he owed a duty of care not to injure even the foolish. It was difficult to see why he should be absolved of all liability and the claimant denied any relief except in extreme circumstances. In the instant case, the judge had found that the pedestrian had run out into the road because he thought he could stop in the middle and look left before completing his crossing and had thought that he was much closer to a crossing than he was. Comment Although decided on its facts, this case illustrates the distinction between a rare situation in which "the conduct of the claimant is so wholly unreasonable that it eclipses the defendant's wrongdoing and constitutes a novus actus interveniens". This scenario applied here, namely, that the claimant was entirely the author of his own misfortune". The issue of novus actus is more likely to arise where a defendant had been held liable or has accepted liability for some injury and the question is whether a later injury is one for which the claimant, and not the defendant, is responsible. If that disentitled him to recovery, there would be many cases in which recovery would be denied, where they been awarded damages in the past, although heavily reduced for contributory negligence. Page 3

4 Civil Procedure - Expert Witness Yearsley v Mid Cheshire Hospitals NHS Trust [Lawtel 15/06/2016] looks at a court s attitude to a late application to introduce medical expert evidence. The claimant had developed chronic infection following surgery to his right foot. He later had surgery to his shoulder for septic arthritis, which he claimed was related to the foot infection. He began proceedings against the defendant claiming damages of approximately 500,000 for what he claimed a significant disability as a result of the infection. The claimant, aged 62, had a long history of psychiatric problems and claimed that they had been significantly affected by his physical disability. The defendant admitted liability and a trial to assess damages was listed for November An expert for the defendant considered that the claimant had significant and long-standing dementia and that an appropriate expert should carry out a proper assessment. The claimant applied for the directions already given in the claim to be amended to permit him to rely on further expert evidence to consider: his capacity to conduct the litigation; whether he had any cognitive impairment and if so when it began, whether it could be treated, the cause and whether the trust's negligence had contributed to it, and his life expectancy. The defendant argued that a single joint expert should be instructed, or at least a single expert should conduct the tests for dementia. if there was a single joint expert the claimant might be inhibited from having frank discussions.. The High Court judge held that the proportionality of incurring further expense on experts was high on the court's list of criteria to have regard to, particularly given that the claim was by no means near the upper end of the clinical negligence scale. If the claimant had dementia it would have an impact on the trial. It might transpire to be part of the claim and if there was a single joint expert the claimant might be inhibited from having frank discussions. The claimant was granted permission to call his own expert psychiatrist with expertise in diagnosing dementia, and the defendant was given permission to instruct an expert in reply if appropriate. Precisely what type of expert to instruct was a matter for each party; the important aspect was that each covered the same medical area. It was not necessary to call more than one expert; a psychiatrist would have access to other experts within their unit. With regard to instructing a single joint expert to conduct the testing, it was difficult to know what tests could be said to be objective, there was a risk of ending up with three experts and there was little to be gained. The claimant was to serve his expert's report and defendant could decide whether it wished to answer it. If the tests produced objective data, the defendant's expert should be able to take it and comment on it. It was premature to vacate the trial date until it was known whether the claimant had dementia. Comment On the face of it this was a pragmatic decision which attempted to do justice between the parties without incurring disproportionate expense. The sequential disclosure of reports also increased the chances that the defendant might not need to commission its own report. What is of interest, however, was the judge s view that the nominated experts could tap into the expertise of colleagues to ensure that they were able to deal with the issues, rather than engage three, overlapping experts. While that is understandable, it requires the expert instructed to comply fully with Practice Direction 35, which states (with emphasis added): 2.2. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise; 3.2.An expert's report must: (4) make clear which of the facts stated in the report are within the expert's own knowledge; (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision; 3.3 An expert's report must be verified by a statement of truth in the following form I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. Page 4

5 Once the dust settles: on with the reforms? In eight days time the result of the EU Referendum will be known and the business of governing the country will go back to some sort of normality. If nothing else, we can expect the Ministry of Justice to pick up on its work of reforming the legal market, particularly in the field of personal injury. Here, we look back at what was being considered before the politicians were diverted onto the European issue. With the summer recess now fast approaching it is unlikely that the first of any reforms will become effective before the spring of Then, in no particular order, we can expect gradual developments in the following areas. The attack on the scourge of whiplash through a combination of an increase in the small claims track limit to 5,000 for personal injury claims and a prohibition on claims for soft tissue injury. Increasing the small claims track limit from the current PI limit of 1,000 will be a straightforward matter but producing a definition to prevent whiplash claims will be far more problematic. When it is considered to be working to a sufficiently high standard, an extension of MedCo to govern the selection of medical experts in non-portal claims. The issue here will be whether the MoJ considers the system to be worthy of extension when its users are still concerned about performance and abuse. An extension of fixed fees in many categories of litigation where the monetary value of the claim does not exceed 250,000. Can a matrix be agreed which allows work to be done properly in every case without risking quality of service and a risk of secondary claims for professional negligence? The introduction of the online court, initially for claims valued at up to 10,000. (If this is deemed a success it will quickly be extended to claims worth up to 25,000). The system seems likely to involve a three-tiered approach of triage, conciliation and a final judgment for most civil cases. The concern here is that there may be limited incentive for lawyers to be involved with these claims and both sides of the legal profession have expressed concern that paid but largely unregulated McKenzie Friends should not be permitted to step into the breach. Opinion will remain divided over whether all or most of these reforms are justified. The headline is direct costs savings to the public, through reduced insurance premiums. However, there are also concerns that access to justice is being reduced, if not denied and that the true beneficiary is a cash-strapped government which will need to fund fewer courts and judges. While we await further news of these proposed changes, we can continue to monitor progress in another area in which the government appears enthusiastic to embrace progress: autonomous or driverless cars. Insurers and their legal advisers will soon face new challenges as the human element in RTA accidents diminishes and liability is reduced to an analysis of telematics data. Page 5

6 Disclaimer & Copyright Notice The contents of this document are considered accurate at the time of delivery. The information provided does not constitute specific legal advice. You should always consult a suitably qualified solicitor about any individual legal matter. Horwich Farrelly Solicitors accepts no liability for errors or omissions in this document. All rights reserved. This material provided is for personal use only. No part may be distributed to any other party without the prior written permission of Horwich Farrelly Solicitors or the copyright holder. No part may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical photocopying, microfilming, recording, scanning or otherwise for commercial purposes without the written permission of Horwich Farrelly or the copyright holder. Horwich Farrelly 2016 Page 6