Update: road traffic

With the introduction of the Civil Procedure (Amendment) Rules 2010, it is easy to conclude that 2010 will be remembered as the year that fixed costs took a firmer grip on the personal injury world. Legislators do not intend to limit the scope of these rules to RTAs indefinitely, although the inability of the portal to cope with the demands made of it might cause some pause for thought.

The following review of five Court of Appeal cases from this year dealing with the issue of contributory negligence will also serve as a reminder that, contrary to common misconceptions, RTAs are often far from straightforward.

Pedestrians

Contributory negligence arguments have always been prevalent in cases of this type, and sometimes in the most surprising of circumstances. In Osei-Antwi v South East London & Kent Bus Co Ltd [2010] EWCA Civ 132, the judge at first instance found in favour of the claimant but with a deduction of one third for contributory negligence.

Ms Osei-Antwi was struck by the rear of the bus while waiting to cross a road thereby sustaining injury. Even though the rear of the bus had mounted the pavement and the claimant had remained on the pavement at all times, she was criticised by the judge for standing too close to the road and failing to keep a look out for buses.

Common sense prevailed in the Court of Appeal. The claimant was in an area where buses were not entitled to be. It was not possible to attribute any blame to her. Hallett LJ stopped short, however, of lending her weight to the idea 'that a pedestrian who is struck when standing on a pavement can never be held to blame'. Practitioners must therefore continue to consider the individual circumstances of any such case.

No escape for highway authorities

It is easy to forget that sometimes it is the local highway authority on the receiving end of a claim for damages arising from an RTA. In West Sussex County Council v Russell [2010] EWCA Civ 71, the claimant crashed into a tree having lost control of her vehicle while driving on an icy road. The claimant was within the speed limit but, at trial, admitted that she was driving too fast for the conditions. It was alleged nevertheless that it was the highway authority's breach of duty which was the substantial cause of the accident. The verge onto which Ms Russell had driven had a 'drop-off' between the carriageway and the verge of between six and 12 inches which it appeared had arisen as a result of substandard resurfacing work carried out two and a half years earlier.

Perhaps unsurprisingly, the judge at first instance found in favour of the claimant but softened the blow for the defendant by subjecting the damages to a 50 per cent reduction for contributory negligence.

This decision was appealed by the council and cross-appealed by Ms Russell. Some criticism was made by the Court of Appeal of the judge at first instance who seemed to have become preoccupied by the issue of whether the area concerned was a highway and whether the defendant had failed to maintain it. These issues were not in dispute. Nevertheless, Wilson LJ and his colleagues determined that the correct decision had been reached, 'the defendant could reasonably have been expected to know that the height of the drop-off was likely to cause danger to users of the highway'. Ms Russell had admitted in live evidence that she had been driving too fast. Honours are, therefore, even.

A local highway authority was also on the receiving end in Yetkin v Newham London Borough Council [2010] EWCA Civ 776. The case was a good opportunity to look once more at the decision in Gorringe v Calderdale MBC [2004] UKHL 15. In Gorringe, Lord Hoffmann addressed the issue of whether the statutory power under section 39(2) of the Road Traffic Act 1988 gave rise to a common law duty to act and whether failure to exercise the power could be a breach of that duty.

In Yetkin, the claimant pedestrian was using a crossing constructed by the defendant over a six-lane carriageway. While at the central reservation, Ms Yetkin's view of the approaching traffic was obscured by shrubs planted by the defendant. In a reckless moment, she set off without waiting for the traffic lights to change in her favour and was struck by a car. The claim against the motorist was dismissed and the judge found that the shrubs had contributed significantly to the accident.

However, incorrectly, it was also held that Gorringe had raised the bar for any claimant bringing a common law claim against a highway authority for creating a hazard on the highway. Accordingly, the authority also escaped liability.

The Court of Appeal, particularly Smith LJ, provided a useful analysis of Gorringe, making clear that the 'highway authority owed a duty to all road users (whether careful or negligent) in the manner in which it exercised its powers'. While clearly the defendant had anticipated that pedestrians would use the traffic lights, it was foreseeable that some would not and, therefore, a good view of the carriageway was necessary.

Ms Yetkin was not to escape free of blame and an order of 75 per cent contributory negligence was made reflecting her careless actions.

These decisions demonstrate that highway authorities cannot rely on the actions of reckless drivers or pedestrians to escape liability '“ at least not totally escape.

Seatbelts

The Court of Appeal continues to be asked to consider the issue of contributory negligence in connection with the failure to wear seatbelts. In Stanton v Collinson [2010] EWCA Civ 81, the Court of Appeal upheld a finding that there was no contributory negligence on the part of the 16-year-old claimant even though neither he nor the passenger sat on his lap were wearing a seatbelt (see solicitorsjournal.com, 3 March 2010). William Stanton sustained major brain damage and, while naturally primary liability had already been admitted by the time the parties reached trial, 15 per cent contributory negligence was alleged in line with Froom v Butcher [1976] QB 286 CA (Civ Div).

On analysis the moral of this sad case is that to seek the assistance of Froom, defendants must obtain persuasive medical evidence to demonstrate that a belt, if worn, would have made a considerable difference to the level of brain damage caused. Here, such evidence was not acquired and instead expert road safety engineers were called upon by the defendant to establish that this was the case. Doing the best job they could do in the circumstances as non-medical experts, the engineers concluded that the severity of the head injury would have been reduced but a 'serious head injury' was unlikely to be completely prevented.

The defendant was unhappy with two aspects of the original judgment. Rather optimistically, they argued that the judge was wrong to rule that the engineer's evidence went beyond their expertise.

On appeal it was agreed that the engineering evidence was of course admissible but the judge at first instance had to view the evidence as a whole and there was insufficient evidence to make a finding of contributory negligence based on Froom. Second, Froom itself was challenged in light of developments since it was decided. Hughes LJ, anticipating the direction that this argument was heading, resolved to draw a line in the sand, stating that 'there is a powerful public interest in there being no such enquiry into fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which entail trial do not mushroom out of control'.

Expert evidence

Finally, a reminder that there is no such thing as judicial infallibility. In (1) Joshua Smith (2) Co-Operative Group Ltd v Mark Hammond [2010] EWCA Civ 725, the 13-year-old claimant was delivering newspapers and cycled out of a driveway, across the pavement and, without looking, into the road. Mr Hammond applied his brakes and swerved and, while he still struck Joshua with his lorry, avoided causing a fatality.

Expert evidence had been submitted to the judge at first instance relating to reaction times. The claimant's representatives argued that the action taken by Mr Hammond was insufficient, and he should have sounded his horn. The defendant's expert provided evidence that sounding the horn would not have prevented the accident but in what must have been a heart-sinking moment for Mr Hammond '“ who was counterclaiming against the claimant for post-traumatic stress disorder sustained in the accident '“ the judge rode roughshod over the expert testimony and preferred to rely on his own experience. This, he informed the parties, was that a person reacted pretty instantaneously to the shock of the sound of a horn and Mr Hammond should have taken this precautionary action when Joshua's cycle was halfway across the pavement. Accordingly, the claimant succeeded but with a finding of 60 per cent in respect of contributory negligence.

The judge dismissed the counterclaim as he could not accept that a child of Joshua's tender years would foresee physical injury to the counterclaimant, thereby failing the test in Page v Smith [1996] AC 155.

In support of the inevitable appeal, Mr Hammond's representatives argued that their client had done all that could reasonably have been expected of him. Could he and should he have been sounding his horn at the same time as emergency braking, swerving and attempting to maintain control of his vehicle?

Common sense winning the day once more, it was agreed that the judge at first instance was seeking to impose a counsel of perfection. Clearly, Mr Hammond had been a reasonably prudent lorry driver. As for the expert testimony, of course, if the judge had a good reason to refuse to accept the evidence, he was at liberty to do so. There was no reason and, even if such evidence was rejected, it was unacceptable for a judge to resort to relying on his own perceptions and experience in reaching a finding or, as Moore-Bick LJ, put it: 'The layman may think he reacts to something instantaneously, but the scientist may be able to demonstrate that he does not.'

As the judge at first instance had found that the minor had been substantially to blame for the accident, and as Mr Hammond was not at fault for the accident, the counterclaim succeeded in full.

The above cases serve as a reminder that arguments on contributory negligence will continue to test the courts and that RTA claims on one level at least remain challenging. Further, the emphasis of the Court of Appeal that such decisions are case-specific also highlights the unpredictability of the outcomes. Future legislators should take note.