WHEATCROFT v BRINE – Liability to ‘smartphone zombies’?

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His Honour Judge Main QC on 11th May 2017 handed down judgement in this case at Manchester County Court. David Sandiford, instructed by Irwin Mitchell, appeared for the Claimant; Charles Feeney, instructed by Keoghs, appeared for the Defendant. At approximately 12.10 pm on 24th December 2013 Ms. Chloe Wheatcroft, the then 14-year old Claimant, was involved in a road traffic accident with a van driven by the Defendant Mr. Brine. The Claimant attempted to cross the road between two cars that were stationary in traffic at a set of lights. At the time of the collision, the Defendant was driving slowly to the right of the stationary cars, positioning himself to join the traffic preparing to turn right at the lights. Neither party noticed the other until the Claimant collided with the front left side of the vehicle. The left side of the vehicle features a retractable step for assisting with moving Mr. Brine’s disabled son into the vehicle, which protrudes approximately 2 inches from the side of the vehicle.

The Claimant was helped by a number of onlookers, in particular X, who had been in a car in the left side queue of traffic at the time of the accident. She suffered profound fractures of the right tibia and fibula, friction burns and a degloving injury to the right foot and she underwent a number of medical procedures, including a galaxy frame. The court noted the complexity and length of recovery efforts and expressed sympathy.

Claim:

The Claimant alleged negligence in three broad categories: firstly the Defendant in moving out of traffic encroached upon hazard markings on the road when such a manoeuvre was unsafe; secondly the Defendant failed to check the area ahead, to brake adequately or to avoid the Claimant, to drive at a safe speed, or to warn the Claimant; finally the Defendant failed to take sufficient account of the protruding retractable step. The latter of these allegations was not pursued at trial.

The Defendant denied all allegations and maintained that he had adopted a slow, safe speed; he had paid due attention to the road, and that the Claimant had simply walked into his vehicle. Further, or in the alternative, he claimed that she had been negligent in attempting to cross from a dangerous position; in not taking due care to check the road before attempting to cross; and in using a mobile phone while attempting to cross.

Oral and written evidence:

The Claimant recalled first checking to her right and seeing no oncoming traffic, and then checking to her left, towards the junction. She didn’t recall stepping out into the road, but stated that having checked to her left, “what happened next is a blur.”

The Claimant, and her mother Mrs. Brady, maintained that she had not been using a mobile at the time of the accident. Phone records were inconclusive as they showed only outgoing and not incoming calls. X and the wife of the Defendant Mrs. Brine, who was a passenger in the vehicle, both maintained that the Claimant was using a mobile at the time.

Mr. Brine stated that he had adopted a slow, careful speed and that his attention had been focused on the road ahead. He pointed out that it was for this reason that he had not seen the Claimant. He accepted that it was likely that he had encroached upon the hazard but maintained that this was not relevant as he was beyond the hazard when the accident occurred. He also accepted the possibility that he had pulled out from traffic to move into the second queue, rather than merely approached and filtered into that queue whilst moving.

X offered two lengthy statements about his recollection of the event. The first, given close to the time of the accident, was affected by his suffering from PTSD. On examination he preferred his second statement, which was not so affected. He maintained that the Defendant had been travelling at approximately 10mph and that he encroached on the hazard but would have been principally concerned not to encroach onto the lane on the other side. As noted, he was certain that the Claimant had been on her mobile and that she had walked out into the vehicle.

The decision:

HHJ Main QC reminded himself that he did not have to make a finding on every material issue. He accepted that the Defendant’s account was genuine and that he was probably mistaken in relation to his witness statement. The judge found it likely that he did enter the hazard but did not find that this was an unsafe manoeuvre.

Notwithstanding the contradictions in X’s evidence, HHJ Main QC was satisfied that he was a reliable, independent witness and accepted his evidence in relation to the Claimant’s using her mobile and stepping into the road.

In relation to the Defendant’s driving, HHJ Main QC made two significant findings. First, that the Defendant had breached his duty in “focusing his attention in a blinkered way to the traffic lights and to the offside having left the hazard.” Second, that a reasonably prudent motorist would not, at a speed of 10mph or less, have adopted any evasive or cautious action merely at the sight of a pedestrian on the pavement.

Though the ordinary prudent motorist would scan the road ahead on an intention to move out and thereby become aware, cautionary action would at most be taken once a pedestrian stepped to the curb edge. In this instance there is no evidence to suggest that such action taken at the point of the Claimant’s stepping out would have avoided the collision. The finding of breach in relation only to the ‘blinkered focus’ was not causative of the accident or injuries.

In the circumstances HHJ Main QC did not accept the evidence of the Claimant or her mother in relation to the mobile; preferring that of the other witnesses. He found that she had been using it at the time and had failed to take sufficient care, which even at 14 she would have been expected to do. He therefore suggested that had causation been found, he would have also found contributory negligence at 40%.

Charles Feeny’s Comments

This case emphasises how difficult it is for a Defendant motorist to escape liability in an accident involving a pedestrian. As we commented in relation to the case of McGeer v McIntosh the “lethal weapon” argument is now regularly deployed both in relation to primary liability and contributory negligence. It is notable that, despite no liability arising in this case, had contributory negligence been engaged it would have resulted in a reduction of only 40%.

The Claimant walked out of a passageway between two buildings, briskly across the pavement and between stationary vehicles so as to walk into the side of the Defendant’s vehicle which was slowly overtaking a line of stationary vehicles. On the Judge’s findings, the Claimant was paying no real attention to crossing the road but rather was preoccupied by a heated conversation on her mobile phone.

The Defendant, a mature driver with an exemplary record, was moving slowly to the right of the stationary traffic with the intention of turning right at the lights. Whilst at the commencement of his manoeuvre he had marginally passed over the hazard markings in the road, which was not in strict compliance with the provisions of the Highway Code, the Judge held that this was not causative of the accident as the Defendant was established in a perfectly reasonable position in the carriageway when the accident occurred.

The Defendant did not see the Claimant prior to the accident. The Claimant approached the Defendant’s vehicle from an angle which was obliquely to the Defendant’s left. The Defendant’s apparently reasonable explanation for not seeing the Claimant was that he was not looking in this direction but rather at the road ahead and the direction in which he intended to travel. Somewhat surprisingly, the Judge held that this was a breach of duty and that the Defendant should have been “scanning” the road ahead of him. This scanning of the road would on the Judge’s finding have included looking to his left beyond the line of stationary vehicles. This aspect of the Judgment may well have been the subject of an appeal had the Judge not gone on to find that had the Defendant seen the Claimant, the Defendant would not have been expected to react before the Claimant left the pavement. By this time it would have been too late to avoid the collision in particular because the Claimant did not see the Defendant’s vehicle at all.

Apart from emphasising the difficulty of a Defendant motorist resisting liability in these circumstances, the case also raises the issue of the use of mobile phones whilst crossing the road. It is, of course, a criminal offence for a motorist to use a mobile phone whilst driving. It might be argued that a similar offence should exist for a pedestrian crossing the road using a mobile phone. Coincidentally, very shortly after the judgment, the Mayor of Honolulu announced that from 25 October there would be a criminal offence of “distracted walking”. This was to protect “smart phone zombies” from injuring themselves. A study undertaken by the University of Maryland in 2015 indicated that there had been more than 11,000 injuries resulting from phone related distraction whilst walking in the United States between 2000 and 2011. The offence in Honolulu, which will be punishable by a fine, makes it illegal to use a mobile phone whilst crossing the road subject to a limited exception of an emergency call.

We are now very regularly obliged to listen to mobile phone conversations whilst people are on the street or on public transport. Judging by what is heard, very few, if any, of these conversations could not wait. If the law reasonably is requiring a very high standard from motorists in relation to pedestrians, it would not seem unreasonable that pedestrians should be obliged by law to show a very basic standard of care in terms of concentrating on crossing the road rather than a conversation on a mobile phone.

Charles Feeny was instructed by Joe Parkinson, Head of Major Injury Claims, RSA Motability together with Mike Suddards and Natalie Dawes of Keoghs Solicitors.

McGeer v McIntosh: Paving a safer way for cyclists? (Number 2)

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The Court of Appeal have dismissed the Defendant’s appeal against the judgement of His Honour Judge Raynor QC awarding the Claimant 70% of damages on a full liability basis.

We previously discussed the implications of the first instance judgment in McGeer v McIntosh: Paving a safer way for cyclists?

The appeal sought to challenge the Judge’s findings on liability and apportionment. Given that this necessitated arguing that the Judge’s findings on fact and approach to apportionment were outwith a reasonable judicial range, the dismissal of the appeal is unsurprising.

Whilst Lord Justice Treacy indicated that there was no important point of law or principle involved in the case, the decision is instructive and useful for those seeking to act for cyclists in accidents involving HGVs or other large vehicles; regrettably an increasingly common type of accident with often disastrous consequences.

The decision shows the value of expert reconstruction evidence in appropriate cases. Although courts are sometimes reluctant to permit such evidence, in particular following the comments of the Court of Appeal in Liddell v Middleton [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1996] PIQRP 36, there are some cases, this being one, where it is essential. The Claimant who was grievously injured in the accident had no recollection of it. No eyewitness had a complete view of the circumstances leading up to the accident and of the accident itself; in particular no-one observed the Claimant as the Defendant commenced his manoeuvre. Her position at this time was therefore inevitably the subject of reconstruction.

In reality, the Defendant’s case was based on reconstruction, but this reconstruction was grounded in estimations of witnesses at the scene. On the other hand, the Claimant through the evidence of Mr Ric Ward, was able to produce a reconstruction substantially based on CCTV evidence, which did not rely upon what Lord Justice Treacy described as “guesstimates”. The Court of Appeal considered that His Honour Judge Raynor QC was entitled to treat the scientific reconstruction as being more accurate than that based upon eyewitness estimation.

The Court of Appeal also upheld the Judge’s finding that the Defendant was not only negligent in failing to see the Claimant before he set off from the traffic lights, but that he had a continuing duty to maintain some form of observation, in particular before he turned left, at which stage he would no longer have a view down his nearside (paragraph 14, Court of Appeal judgement). Lord Justice Treacy, consistent with the finding at first instance, did not consider that the Defendant should maintain a constant view in his nearside mirrors from moving off to turning left, but that he should have made an additional check prior to turning left.

Given the known risk of undertaking in these circumstances, the Defendant’s position in the road which would create a perception that he would be turning right, and the fact that the Defendant’s indicators were masked by a vehicle immediately behind him, Lord Justice Treacy accepted that the Judge was entitled to find reasonable care would necessitate a further check immediately prior to turning left. This finding is consistent with guidance in the Highway Code in Rule 72,

  • “Just before you turn, check for undertaking cyclists and motorcyclists”And in Rule 211
  • “Be especially careful when turning and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”

The decision of the Court of Appeal therefore confirms a high duty on drivers of HGV vehicles and other heavy vehicles when turning at junctions, in particular in circumstances in which movement to the right is necessary before a left turn.

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Williams v Bermuda Hospitals Board: The search goes on?

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Case Background

Charles Feeny & Sammy Nanneh

In our article in the PI Update Law Journal, “Material contribution: the search for the elusive third way“, we argued that the decision in Bailey v. The MOD appeared to accept an exception to ‘but for’ causation in tort. However, the precise basis and ambit of this approach was neither clear nor justifiable. The term “material contribution to damage” had two clear and conventional meanings. First, it could represent proof of an identified proportion of a divisible injury. Secondly, it could connote that the Defendant’s conduct had not been the sole cause of an indivisible injury, but nonetheless a sufficient cause. Beyond this, it was difficult to see how material contribution to damage could operate in particular as an exception to ‘but for’ causation.

The Privy Council decision in Williams has been much anticipated. It was thought that the case would enable the highest court, albeit sitting in a different capacity, to consider the decision in Bailey. The NHSLA were given permission to intervene in the hearing of Williams, which was an appeal from the Court of Appeal in Bermuda. The facts of Williams were significantly similar to those of Bailey. Both involved a developing state, ‘weakness’ in Bailey and ‘sepsis’ in Williams, which resulted in an event causing further indivisible damage.

In Williams, the Judge at first instance had dismissed the claim on the basis of failure to prove causation, but the Court of Appeal of Bermuda had reversed the decision. In simple terms, they considered that on the Judge’s findings there was sufficient contribution to the Claimant’s sepsis to justify a finding of causation on the basis of material contribution to damage. This was an application of the Bailey ‘exception’. They did not consider that ‘but for’ causation needed to be established.

In the Privy Council, the Hospital Board accepted that Bonnington Castings was binding, but sought to distinguish it. This was done on the basis that the ratio of Bonnington only applied where the respective causal factors exhibited the same physical and simultaneous effect. It was argued that the ratio would not apply where the different causal factors were successive in their effect. This argument was rejected by the Privy Council.

            “The sequence of events may be highly relevant in considering as a matter of fact whether a later event has made a material contribution to the outcome (as Hotson illustrates), or conversely whether an earlier event has been so overtaken by later events as to not have made a material contribution to the outcome. But those are evidential considerations. As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome.”

The Board then dismissed the Hospital Board’s appeal on the basis that there had been a material contribution from the breach of duty i.e. through the continuation of a septic process over an appreciable period. From this it was reasonable to infer a material contribution to the injury to the Claimant’s heart and lungs.

However, the Privy Council then went on to consider, albeit obiter, that the Court of Appeal had been wrong in Bailey to consider that the finding for the Claimant had not involved a finding on a ‘but for’ basis. The Privy Council gave consideration to Mr Justice Foskett’s findings of fact in Bailey. They considered that the degree of contribution to the injury found by him on the evidence was sufficient to infer ‘but for’ causation. It was the same reasoning process by which they considered the findings in Williams made a similar inference acceptable.

To this extent, it could be considered that Bailey, in terms of the Court of Appeal’s decision, has been marginalised. The position remains essentially conventional in terms of material contribution as a cause but not a sole cause . However, there is still a degree of ambiguity in the Privy Council’s decision as reflected in paragraph 47,

            “The Judge concluded that the totality of the Claimant’s weakened condition caused the harm. If so, “but-for” causation was established.”

This is a reasonable statement in the context of the Privy Council’s view of the findings in both Bailey and Williams, that there was a substantial contribution to the global condition. But the question is still begged, what degree of contribution is necessary to establish ‘but for’ causation? That a Defendant’s conduct can be shown to have contributed to a global condition does not, of itself, establish ‘but for’ causation. The contribution may in fact be so marginal that it would be reasonable to argue that the subsequent injury would have occurred in any event in the absence of the Defendant’s contribution to the damaging process. The Courts would still have to consider at some stage where the bar is to be set in relation to material contribution to damage, but the indications from Williams and its reinterpretation of Bailey is that the contribution will have to be shown to have been substantial, so as to infer ‘but for’ causation

Contributor Comments

For the full version of the article on PI Update Law Journal in it’s January 2016 issue, see below.

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McGEER v MACINTOSH: PAVING A SAFER WAY FOR CYCLISTS?

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Case Background

This case involved a cyclist who undertook a stationary car at traffic lights and then cycled to the nearside of an HGV which was indicating to turn left. In earlier years, this would have been regarded as a very difficult case for a claimant.

In a detailed and careful judgment, the Judge, His Honour Judge Raynor QC, found as a fact that the Defendant should have seen the Claimant on her bicycle in his mirrors and had regard to her presence as he commenced this left hand turn. The Judge considered that the potentially misleading nature of the manoeuvre being carried out created a clear duty on the HGV driver to ensure that the cyclist was not going to proceed to his nearside. The HGV had been positioned straddling two lanes but as it moved forward it might have created the impression that it was in fact turning right rather than left.

In assessing contributory negligence at 30%, the Judge took into account the fact that the Claimant would not have seen the indication as she undertook the stationary vehicle. The apportionment also reflected the Claimant’s vulnerability as a cyclist confronting an HGV following a similar approach in the case of Sinclair v Joyner (2015) RTR29. 

This decision comes against a background of increasing debate as to the responsibility as between cyclists and HGV drivers in particular in London with increasing numbers of cyclists but also much busier roads.

In 2013, HGVs were involved in 9 out of 14 incidents in London leading to cyclist fatalities. The Mayor and Transport for London are aiming to reduce the number of people killed or seriously injured on London’s roads by 40% by 2020. A Transport of London “Cycle Safety Action Plan” has been produced. This includes “Cross Rail Lorry Training” where numbers of lorry drivers working on a specific project have to undertake special cycle awareness training.

From 1 September 2015, London Safer Lorry Scheme requires all HGVs entering the capital to fit potentially lifesaving mirrors and safeguards which are not necessarily provided in older vehicles. Operators caught without these features when driving on London’s roads will face a fine of up to £1,000.

Safety trainers such as Bike Right provide courses for HGV drivers which include requiring such drivers as part of the training to cycle in busy urban areas.

Similarly, the Metropolitan Police now organise events called “Exchanging Places” which allow cyclists to sit in the driver’s seat of an HGV or bus to get a better understanding of what the driver can and cannot see, particularly in relation to cyclists on the nearside or directly in front of the vehicle. These issues are well demonstrated in a short film produced by the Metropolitan Police.

Debate continues as to whether cyclists are often the author of their own misfortune through aggressive or inappropriate cycling. In an article on the Spencer Solicitors website “The Global Problem of Cycling Safety: Whose Fault is it?” an HGV driver who wished to remain anonymous (perhaps unsurprisingly) said,

“For drivers, especially truck drivers, there are tests, training programmes and strict guidelines that we have to follow. Now they’re bringing in more, which is fine but what about cyclists? Cyclists don’t have to pass tests to be able to be ride on roads, they’re not made to wear protective gear like helmets or reflected clothing and so on. Even though it is all strongly advised, there are still so many that just don’t.”

“There are also cyclists who cycle when listening to music. I guess just one headphone is fine but I see some with big beats headphones over their ears, I admit I look at cyclists today and obviously think you’ll only learn if you get hit.”

There are undoubtedly cyclists who jump lights, who weave in and out of traffic and cycle in obviously dangerous positions. However in the present case, the Claimant could not have been considered to have cycled in a way that was knowingly inappropriate or careless for her safety. In practical terms, both the Claimant and the Defendant failed to be sufficiently aware of each other and their manoeuvres. In these circumstances, the law now appears to be clear that analogous with an accident involving a pedestrian and a vehicle the Court will apportion liability against the person who has control of the more dangerous vehicle. Whilst debate continues, this reflects the overall public perception of such a situation. Drivers of HGVs who consider that it is a large enough object to be seen are likely to face the majority of blame unless it can be shown that there was some reckless conduct on behalf of the cyclist.

Contributor Comments

See below for the judgment on McGeer v Macintosh.

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Singh v Sheffield Teaching Hospitals NHS Trust

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The Claimant was employed as a specialist registrar on the Yorkshire & Humbar obstetrics and gynaecology training programme. As part of the position it was necessary to rotate between different hospitals; this entailed a degree of travelling. Prior to joining the respective NHS Trust the Claimant suffered with pain in his cervical spine. The pain grew to such an extent that he required an operation on a prolapsed disk at C5/6. After completing his employment the Claimant required a second operation at C6/7.

The Claimant alleged that the Defendants’ actions led to a worsening of his neck which ultimately resulted in a damaged neck and prevented him from pursuing his chosen career as a consultant in obstetrics and gynaecology. The Claimant’s particular complaint was that the Defendants failed to take sufficient notice of his neck problems when assigning him to hospital. This, he maintained, led to excessive driving to and from work which exacerbated his neck. The court was asked to decide whether there was a breach of duty and if the driving, as opposed to his underlying condition, caused the second prolapse.

The court took the opinion that there had been a breach of duty by the defendants in not following up the concerns of Occupational Health, but that this was not a continuing breach. The court, however, did not believe the claimant’s neck deterioration was caused by the requirement to drive to work and that the pain was constitutional. As such, the claim was dismissed.

Charles Feeny comments,

In effect, the issue in this case was causation.  The Defendants had failed to follow their own recommendations in relation to the Claimant’s return to work after neck surgery and a degree of breach was inevitable.  The Judge made a limited finding as to breach and in effect considered that the Defendants did not remain in breach once the Claimant had in effect settled into a working pattern.  This finding might have become relevant if the Judge had taken a different view in relation to causation.

Whilst the Judge’s acceptance of the Defendant’s case on causation essentially involved a preference for the evidence of the Defendant’s expert, Mr Dyson, over the Claimant’s evidence, Mr Jamile, consideration of the issue did involve the topical issue of the Court’s approach to epidemiological evidence.  An important plank of the Claimant’s case on causation was that deterioration in neck pathology could follow from excessive driving and the Claimant relied upon a paper by Jensen et al in the journal ‘Spine’.  It was therefore in issue as to whether this paper really did bear comparison with the circumstances of the Claimant’s case.  The Learned Judge held, not for good reason, that is that the Jensen paper concerned all day professional drivers who would have a number of other risk factors to include manual work and risk of accident.  The Learned Judge was therefore following although not explicitly cited to him, Lord Phillips’ approach and Sienkiewicz v Greif [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] UKSC 10,

“the Court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause of the disease or the causes of the disease” (at paragraph 91).

It is also perhaps relevant that the Claimant could only produce one paper to support his case on causation.  Given the prevalence of driving and, given the prevalence of degenerative neck disease, if there was a real association between the two it would be reasonable to expect that much stronger evidence from the epidemiology.

Law report

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