Legal Watch:Personal Injury9th May 2014Issue: 017

Events

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

Personal Data Training | 12.05.14 | Peninsular House

MBIG Seminar | 22.05.14 | Royal College of Physicians

Credit Hire Training | 12.06.14 | Milton Keynes

In This Issue:

• RTA

• Civil procedure/committal for contempt

• Watch this space

RTAIn Ramirez v Maheshwari [Lawtel 2/05/2014] the claimant had wanted to cross the road to reach her partner who was in a stationary vehicle facing west. The vehicle was just ahead of a bus. The defendant was driving west along the same road and proceeded towards the rear of the bus. The traffic was slow-moving and in some cases stationary. 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 weather conditions were sunny, the ground was moist and the sun was low in the sky; which caused some reflection from the road. The accident was captured on CCTV. The defendant’s evidence at trial that he had been travelling at 15 miles per hour towards the bus was supported by expert evidence. The defendant also gave evidence that his vision had not been compromised by the weather conditions and that he had checked his left-hand side before driving into the gap. An eye witness gave evidence at trial and stated that the claimant had come from “out of nowhere” and that the defendant had no chance of stopping to avoid her. Another eye witness, who was also in a vehicle facing west and was just ahead of the first witness, gave evidence that she had seen the claimant looking behind her and that she had run into the road without looking. Neither witness said that their vision had been affected by the sun.

The claimant submitted, in reliance on the expert report, that the dazzle of the sun in the road was the reason that the defendant had not seen her and that the weather conditions meant that he should have been travelling at no more than 10mph.

Finding in favour of the defendant, the deputy High Court judge held that it was not without significance that neither eye witness had spoken of the dazzle factor of the sun. The defendant had said that the light had not concerned him and he had behaved accordingly. He had reduced his speed as he approached the bus and if he had looked left before going 1

forward that would not have been negligent. The claimant would have been visible to the defendant for 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; the accident was caused by the thoughtless manner in which the claimant had entered the defendant’s path.

CommentThis is another in a line of recent cases which illustrates that drivers will not be held liable where the movement of a pedestrian into the path of the car is sudden and unexpected.

‘…the accident was caused by the thoughtless manner in which the claimant had entered the defendant’s path’

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Although it is not a personal injury case, Tinkler and another v Elliott (2014) EWCA Civ 564 is a useful reminder of the threshold that needs to be passed if permission is to be secured to bring committal proceedings for contempt of court. This is relevant to cases where a claimant in a personal injury claim is alleged to have been fraudulent.

The parties were embroiled in wide-ranging litigation. The respondent had been engaged by a company connected to the Stobart Group as a helicopter pilot and aviation consultant. The relationship broke down and the respondent complained to the Civil Aviation Authority that the company was committing aviation offences. The CAA conducted a detailed investigation and interviewed a large number of witnesses, including the appellant – the chief executive of the Stobart Group, but decided not to prosecute because of insufficient evidence. The respondent was also involved in a property dispute with the appellant. The claim settled but the respondent started defamation proceedings against the appellant. Those were struck out as an abuse of process. In the meantime, the appellant and the company obtained interim injunctions against the respondent which restricted his freedom of expression. He breached those injunctions on a number of occasions. He sought to bring contempt proceedings on the basis that the appellant had made false assertions about him in witness statements during the various litigations. The respondent made 58 allegations of contempt but was permitted to bring committal proceedings in respect of only seven allegations. Those included that the appellant had told a deliberate and fraudulent lie in claiming that he had been interviewed under caution by the CAA and that he had untruthfully asserted that the respondent was making wholly unfounded allegations against him and his business activities.

Allowing the appeal, the Court of Appeal held that the correct legal approach to be adopted on applications for permission to bring committal proceedings was not in dispute and the judge had correctly summarised the relevant and well-

known principles. In respect of each allegation the starting point was whether a sufficiently strong prima facie case had been established that the statement relied upon was either untrue or had been made recklessly as to whether it was true or false and was known to be likely to interfere with the course of justice.

Once a sufficiently strong prima facie case was demonstrated, it was then necessary to consider proportionality and public interest issues. However, the judge had not applied those principles correctly. He was wrong to conclude in relation

to each allegation that there was a strong prima facie case on the evidence demonstrating that the appellant had knowingly made false statements.

The instant case was not one where the judge was making primary findings of fact based on the conduct of witnesses; rather he was evaluating whether a particular evidential threshold had been reached on the materials before him. The appellate court was in an equally good position to make that evaluation. Further, the exercise of the judge’s discretion when he considered what he referred to as “public interest, proportionality and other discretionary factors” was fatally

CiviI procedure/committal for contempt

‘Whilst there was a strong public interest in ensuring that knowingly false statements made by parties in court proceedings should not go unpunished, this was not such a case’

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flawed. Whilst there was a strong public interest in ensuring that knowingly false statements made by parties in court proceedings should not go unpunished, this was not such a case. The judge failed to stand back and look at the overall reality of the litigation. He failed to take account of the fact that the incorrect, or allegedly untrue, statements of the appellant had all been canvassed as issues in the relevant proceedings and that, where appropriate, injunctions had nonetheless been made, or not granted in the light of such statements. He had also failed to take any account of the fact that, on the history of the matter, the respondent had clearly demonstrated that he was a vexatious litigant with an agenda to pursue in relation to his past relationship with the Stobart parties and he was not an appropriate guardian of the public interest. He was wrong to conclude that it was in the public interest that such allegations should proceed to a full committal hearing.

Against the background of the full history of the matter such a result was disproportionate. The judge should not have permitted any of the allegations to go forward to a committal hearing.

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‘Whiplash reform’On 2 May the Ministry of Justice (MOJ) opened a four-week consultation relating to the future handling of whiplash (soft tissue injury) claims and the amendments that will be needed to various parts of the Civil Procedure Rules.

The first proposal made by the MOJ is that there should be fixed fees for medical reports in these cases. These would be £180 for a GP or chartered physiotherapist and £420 for a consultant. Fees are also stipulated for dealing with medical records and questions under CPR 35.6.

The second proposal is that, where it is felt necessary, the defendant should be permitted to submit a ‘version of events’, where the claimant’s version is disputed. An insurer will require the defendant’s authority to do this. This equates with requiring the defendant to sign the statement of truth in a defence which disputes liability. Experts faced with competing versions of events may need to express alternative opinions, depending on which set of facts ultimately prevails.

One of the major concerns about any system based on a single medical report is that the expert should be independent. The third proposal is directed at achieving this by prohibiting any financial link between the expert and either of the parties. It is also suggested that a party should not be permitted habitually to use the same agency and that reports should be obtained on a rota basis from a variety of intermediaries. This falls short of setting up a panel of experts who are accredited, regulated and subject to peer review, and defendants must continue to monitor for reports prepared by experts who lack objectivity.

‘Pre-med’ offers are to be prohibited but it is proposed that an exception should apply where the claimant obtains a report outside of the fixed fee scheme. There is still disagreement as to the penalty that should apply in such situations. The claimant view is that the claimant should not be permitted to recover the cost of the report but not suffer

any other penalty in costs. Defendants seek a more severe penalty with the full cost consequences of Part 36 applying where appropriate. The draft revised Part 36 reflects the defendants’ preference.

From within Plexus LawPinn and others v Guo and others – Swansea County Court

In this case Plexus Law was instructed to act for the fourth defendant, the insurers of the third defendant. The primary issue was whether our client had Road Traffic Act (RTA) status and would be required to deal with all of the claims arising out of the accident or Article 75 status, in which case it would share the claims with another Article 75 ‘insurer’.

The claimants’ claims were for personal injuries and other losses arising out of an accident which occurred on 9 January 2011. The claimants attended an illegal car cruise/car circus which took place at Baglan Energy Park. They were injured when the first defendant and third defendant took part in a race during the event. The first defendant lost control of his vehicle and collided with the claimants. There was no contact between the first and third defendants’ vehicles or between the third defendant and the claimants.

The second defendant provided a policy of motor insurance for the first defendant and had already obtained a declaration from the court (in separate proceedings) dated 30 July 2012 that its policy was void from inception. It therefore held Article 75 status.

Following the second defendant’s declaration proceedings, the second defendant tried to argue that the fourth defendant should deal with the claimant’s claims in full as they were the insurance company with the greater level of interest (to a meaningful degree) and the second defendant had managed to reduce their status prior to this claim being issued.

Watch this space

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Our client refused indemnity to the third defendant on the basis that the vehicle was being used for racing which was outside the scope of use of the vehicle as defined in the policy.

The hearing on the 11 April 2014 was to determine, as a preliminary issue, whether our insurer client was liable under the policy to indemnify the third defendant in respect of any liability he may have to the claimants. The second defendant challenged our client’s case on the basis that the reference to “racing” within the exclusion clause of our client’s policy, as a matter of construction, did not extend to the circumstances of the accident.

The District Judge found in our client’s favour, confirming that they had Article 75 status. He held that the use of the fourth defendant’s vehicle fell outside the scope of the policy and therefore that:

i. Our client was not liable under the policy to indemnify the third defendant in respect of any liability which he may have to the claimants or either of them

ii. Our client was not liable under S151 Road Traffic Act 1988 and

iii. Our client was not liable to the third defendant, and therefore to the claimants or either of them under the European Communities (Rights Against Insurers) Regulations 2002.

It had already been agreed but the court also formally recorded:

1. The place where the accident happened was a road or other public place within the meaning of the Road Traffic Act 1988

2. Appropriate notice has been given in accordance with clauses 9 and 10 of the Uninsured Drivers Agreement 1999 and that the claimants have otherwise complied in all respects with the provisions of that agreement

The second defendant was ordered to pay our client’s costs. Permission to appeal was refused.

This judgment confirmed that both our client and the second defendant held Article 75 status and subsequently we have concluded an agreement to apportion liability on a 60/40 basis in favour of our insurer client.

CommentThis case illustrates that if it can be established that at the time of an accident a vehicle was being used for a purpose not covered by the policy, the insurer may be able to acquire Article 75 status. This is particularly important where a second insurer cannot reduce its status to the same level but retains contractual or RTA status.

For further details contact

Bryonny Marten:

T: 0208 633 5646

E: bryonny.marten@plexuslaw.co.uk

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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.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

Contact UsFor more information please contact:Geoff OwenLearning & Development Consultant

T: 01908 298 216E: gro@greenwoods-solicitors.com

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