Legal WatchPersonal InjuryMarch 2014

Issue 010

02

It is almost inevitable that lorries on country lanes will

encroach into the other carriageway. But what happens

if there is a collision with a car travelling in the opposite

direction? That was the issue in Gray v Gibson [Lawtel

06/03/2014].

The appellant/claimant had been driving her car along a

single-carriageway country lane with a national speed limit.

The defendant had been driving a lorry in the opposite

direction. The vehicles collided on a bend where the road

was only sixteen-and-a-half feet wide: The lorry was

eight-and-a-half feet wide and had inevitably encroached

into the claimant’s lane. She issued proceedings against

the defendant seeking damages. In a case management

conference, the district judge indicated that his starting

point for liability between the parties was “50:50”, until

he saw what he made of them. At trial, he found that the

claimant had been driving at 30mph and, having rejected

the defendant’s assertion that he had been travelling at

between 10 and 15 mph, that he had been driving at 25

mph. The judge found that at the time of the collision the

claimant’s car had been one foot from the verge and the

defendant’s lorry two feet from the verge, so that it had

passed over two feet onto the claimant’s side of the road.

He held that the defendant bore additional responsibility as

a lorry driver to be careful as he had insufficient visibility

around the bend, and that he had been travelling too fast.

However, he also found that the claimant had been 40%

contributorily negligent because she was travelling too fast

around the bend.

Allowing the claimant’s appeal, the Court of Appeal held that

it was unfortunate that the judge had said that his starting

point for liability was 50:50 to start with the proposition

that both parties were negligent was wrong. However,

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:

MBIG Seminar 22.05.2014 - Wellcome Collection,

London, NW1

In This Issue:

• RTA/Liability

• Causation

• Jackson/Mitchell - Expert Witnesses

• Procedure/Default judgment

RTA/Liability

03

his additional comment that his position might change

depending on what he made of the parties demonstrated

that he had had in mind that the 50:50 position could alter.

When he came to deliver his judgment, that was more or less

what he had done, although the parties were left wondering

whether he had been prepared to shift sufficiently from his

starting position.

The fact that the defendant was not credible could not

help to decide the question whether the claimant had been

negligent. The finding that the lorry had been travelling at 25

mph was generous to the defendant, but that fact alone was

not dispositive of the case.

“A lorry driver crossing over the middle of the road owed a particular duty of care and was not to drive at a speed at which he could not stop within a short distance.”The judge had accepted the claimant’s evidence that she

was familiar with the road and was used to meeting and

passing large vehicles on it. He had not, however, considered

whether she could have expected to meet a large lorry

over two feet onto her side of the road. She could not be

blamed for failing to foresee that eventuality. A lorry driver

crossing over the middle of the road owed a particular duty

of care and was not to drive at a speed at which he could

not stop within a short distance. The claimant could not be

criticised for failing to foresee that the driver of a large lorry

would not take that obvious precaution, and she could not

be described as having driven dangerously. The defendant

was, accordingly, wholly liable for causing the accident.

Gray v Gibson [Lawtel 06/03/2014]

04

The case of Leigh v London Ambulance Service (2014)

EWHC 286 (QB) looks at causation in a case where the

usual ‘but for’ test could not be applied but where the

defendant’s negligence was found to have made a ‘material

contribution’ to the claimant’s condition.

The claimant dislocated her right kneecap as she went to

sit down on a bus. She was trapped between the seats,

was unable to move and in severe pain. An ambulance was

called but it did not arrive until 50 minutes after the injury.

During that time, passengers held the claimant down to stop

her moving as instructed by the emergency operators. She

felt trapped and helpless to end the pain. The defendant

admitted that there was a negligent delay of 17 minutes in

the attendance of the ambulance amounting to one third of

the total period between the dislocation and the arrival of

the ambulance. It was accepted that the claimant suffered

consequential psychiatric and psychological damage,

namely post-traumatic stress disorder (PTSD). It was also

accepted that from a date that was in issue, the claimant

had suffered dissociative seizures. The defendant’s medical

expert was of the opinion that the PTSD was probably

caused within about the first 15 minutes on the bus and

therefore that the negligent delay had no part to play in

its development. His evidence was that the claimant’s

dissociative seizures occurred much later than the onset

of PTSD, were unconnected with it and were consequent

upon other life stressors. The claimant’s medical expert

stated that the PTSD developed as a consequence of one

indivisible event on the bus where the whole 50 minutes

was relevant and that there was no scientific method of

splitting up the time to reach a conclusion as to how long

would be needed to induce a PTSD condition. He was of

the view that the dissociative seizures were part of, and

an extension of, the flashbacks and the PTSD and that the

claimant had a pre-existing vulnerability to such episodes.

The claimant’s evidence was that the seizures began soon

after the onset of her PTSD symptoms. During questioning,

Causationshe had a dissociative seizure resulting in her collapsing in

her seat. The issues were whether there was a causative link

between the admitted negligence and the PTSD and/or the

dissociative seizures.

Finding in favour of the claimant, the High Court judge held

that the evidence of the claimant’s medical expert was to

be preferred. There was no injury that was caused on the

bus, merely circumstances that arose which later led to the

onset of PTSD. There were innumerable variables in the

circumstances that might give rise to the development of

PTSD and in the people who were likely to suffer it. It was

impossible to predict on any scientific or mathematical basis

the moment after which someone would go on to suffer it.

The instant case was a “cumulative cause” type case. The

court was unable to find on the balance of probabilities

that the claimant’s PTSD would have occurred in any

event before the negligent delay. The instant case was one

where medical science could not establish the probability

that “but for” the negligent delay the PTSD would not have

happened, but it had been established that the contribution

of the negligent failure was more than negligible. It made a

material contribution to the development of the claimant’s

PTSD and therefore the claimant succeeded in establishing

the necessary causative link.

“...the contribution of the negligent failure was more than negligible. It made a material contribution to the development of the claimant’s PTSD...”The claimant’s seizure during questioning was undoubtedly

genuine and a product of the pressure of the experience.

05

Although it was very much regretted, it helped the court gain

a better understanding of her continuing psychiatric and

psychological injury. Further it led to the defendant’s medical

expert conceding that it was impossible for him to maintain

his conclusion that all of the seizures were unrelated to the

claimant’s PTSD. Where there were differences between the

medical experts, the evidence of the claimant’s expert was

preferred. The claimant’s evidence that her seizures began

soon after the onset of her PTSD symptoms was accepted.

The court was satisfied that the dissociative seizures were

all part of the PTSD and consequent upon it and were not

related to her other life stressors.

The court had no hesitation in accepting that the injury

fell within the JC Guidelines Chapter 4(B)(a), severe post-

traumatic stress disorder. An appropriate award for damages

for pain, suffering and loss of amenity was £60,000.

Leigh v London Ambulance Service (2014) EWHC 286

(QB)

06

Jackson/Mitchell - Expert WitnessesThe courts’ powers to control witness evidence in the

post-Mitchell era and to take into account the impact of

case management decisions on parties in other cases is

illustrated in Clarke v Barclays Bank Plc (2014) EWHC 505

(Ch).

The defendant was the claimant’s mortgagee and the

claimant had brought the claim because he alleged that

the defendant had sold the mortgaged property at a

gross undervalue. A third party had been joined because

the defendant claimed to have relied upon its advice. In

accordance with the court’s directions, both parties had

served expert evidence. However, on 3 May 2013, the

claimant’s original expert informed the claimant that he was

withdrawing from the case because he had retired. The

claimant did not share that information with the other parties

and allowed a trial window to be fixed. Over the coming

months, mediation was arranged, but there were delays

and it never took place. The claimant did not disclose the

expert’s retirement until 27 November, by which time he

had already instructed another expert. He served the new

expert’s report on 20 December and was granted permission

to rely upon it in February 2014.

Allowing appeals by the defendant and the third party, the

deputy High Court judge held that the court’s directions

envisaged a sequential exchange of expert evidence, with

the defendant and third party’s experts responding to the

claimant’s expert evidence and the experts meeting and

seeking to narrow the issues. In those circumstances, it

had been wholly improper for the claimant to withhold the

information about the first expert’s withdrawal beyond a

reasonable period. Once the claimant had decided that he

had to find a new expert to replace the first expert, he should

have disclosed the problem to the court and the other

side. The expert’s withdrawal was outside the claimant’s

control and there was little doubt that the court would have

been sympathetic to him if he had applied promptly for

directions. The inference was irresistible that the claimant

withheld the information in order to see if he could settle

the case in a proposed mediation on favourable terms

before he disclosed his difficulty and thereby undermined

his negotiating position. That strategy failed when the

mediation was delayed. It was also clear that the other

parties would suffer serious prejudice as a result of the delay

in the disclosure of his information if the claimant could rely

on the new expert’s report. As directed, they had responded

to the first expert’s report and the claimant had seen their

experts’ positions and had the advantage of preparing

his new expert’s reports in the light of it. If the new report

was admitted, the defendant and third party would have to

respond to that and the trial would have to be adjourned.

Taking all those factors together, the claimant’s conduct

amounted to a serious abuse of the process of the court.

The deputy master who granted the claimant permission to

rely upon the new expert’s report had failed to appreciate

that. He had also failed to apply the important guidance

given in Mitchell. The court had to strive to be a tough but

wise, not an officious or pointlessly strict, disciplinarian.

“...if the new expert’s report was admitted, the trial would have to be vacated to the detriment of other court users”It had been the claimant’s clear duty, under CPR PD 23A -

2.7 to apply for further directions very soon after 3 May 2013.

If he had done so, the court would have managed the time

within which he had to identify and instruct a new expert.

As it was, however, if the new expert’s report was admitted,

the trial would have to be vacated to the detriment of other

court users. It was an important factor that the court should

enforce procedural discipline in order to raise standards of

07

time-keeping in the courts. Although the expert evidence

was critical to the claimant and he would be seriously

prejudiced if he was denied permission to rely on the new

report, the balance of justice as between the parties came

down firmly in favour of refusing that permission. Although

it might be little comfort to the claimant, the court would be

prepared to give directions that the original expert’s report

was in evidence at trial even though he might not attend or

otherwise engage in the directions for the experts to co-

operate in narrowing the issues.

Clarke v Barclays Bank Plc (2014) EWHC 505 (Ch).

08

Procedure/Default JudgmentDefendants should note the case of Samara v MBI Partners

UK Ltd and another (2014) EWHC 563 (QB), which confirms

what many had already suspected: that when applying to

set aside a default judgment, the defendant is now required

to address the new approach to the overriding objective

with its stress on the compliance with rules, orders and

practice directions.

The first defendant had failed to file a form of acknowledgment

of service or a defence and at a hearing on 13 February

2012, judgment was entered against it. It was not until 21

May 2013 that an unsuccessful application was made to set

aside that judgment. The first defendant appealed to a High

Court judge.

“...the judge confirmed that the new regime has universal application...”Whilst confirming that even under the previous approach to

such applications it would have failed, the judge held that

the new regime has universal application and the need for

promptness has even greater significance than previously.

The master had considered three separate periods of delay

on the part of the first defendant and it was appropriate that

the judgment was entered.

CommentThe significance of this ruling is that if defendants allow

default judgments to be entered, any application to set

aside the judgment will need to address the issues of why

the judgment was entered (was the reason ‘trivial’?); how

promptly the application was made; and then the prospects

of successfully defending the claim if the judgment is set

aside. Any delay in making such an application will weigh

even more heavily against the defendant than was previously

the case.

Samara v MBI Partners UK Ltd and another (2014)

EWHC 563 (QB)

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. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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