Too much information?

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[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”][fusion_vimeo id=”142273006″ width=”767″ height=”450″ autoplay=”yes” api_params=”” class=””][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”20px” sep_color=”#dbdbdb” border_size=”1px” icon=”fa-play” icon_circle=”yes” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][/fusion_builder_column][fusion_builder_column type=”2_3″ last=”no” spacing=”yes” center_content=”no” hide_on_mobile=”no” background_color=”” background_image=”” background_repeat=”no-repeat” background_position=”left top” hover_type=”none” link=”” border_position=”all” border_size=”0px” border_color=”” border_style=”” padding=”” margin_top=”” margin_bottom=”” animation_type=”” animation_direction=”” animation_speed=”0.1″ animation_offset=”” class=”” id=””][fusion_title size=”3″ content_align=”left” style_type=”default” sep_color=”” margin_top=”” margin_bottom=”20px” class=”” id=””]About this Webinar[/fusion_title][fusion_text]The webinar explores the practical implications of the decision in the case of Montgomery v Lanarkshire Health Board.

This webinar is split into three sections. The first is an introductory talk on Montogomery by Charles Feeny. The second is a talk by Professor Graeme Poston, Consultant Hepatobiliary Surgeon and Professor of Surgery at the University of Liverpool entitled “Informed Consent: where are we now?”. Finally, the webinar presents a talk by Professor Gus Baker, Professor of Clinical Neuropsychology at the University of Liverpool entitled “Consent: Psychological perspective”.

Participants:

  • Mr. Charles Feeny
  • Prof. Graeme Poston, Consultant Hepatobiliary Surgeon
  • Prof. Gus Baker, Professor of Clinical-Neuropsychology, University of Liverpool

We are grateful to Weightmans and to our delegates who assisted hugely contributing to the Q&A session making it an informative session.[/fusion_text][/fusion_builder_column][fusion_builder_column type=”1_3″ last=”yes” spacing=”yes” center_content=”no” hide_on_mobile=”no” background_color=”” background_image=”” background_repeat=”no-repeat” background_position=”left top” hover_type=”none” link=”” border_position=”all” border_size=”0px” border_color=”” border_style=”” padding=”” margin_top=”” margin_bottom=”” animation_type=”” animation_direction=”” animation_speed=”0.1″ animation_offset=”” class=”” id=””][fusion_title size=”3″ content_align=”left” style_type=”default” sep_color=”” margin_top=”” margin_bottom=”20px” class=”” id=””]Supporting Documents[/fusion_title][fusion_button link=”http://pvl.helloplaza.uk/wp-content/uploads/2016/04/Too-much-information-powerpoint.pptx” color=”default” size=”” stretch=”yes” type=”” shape=”” target=”_blank” title=”Download” gradient_colors=”|” gradient_hover_colors=”|” accent_color=”” accent_hover_color=”” bevel_color=”” border_width=”” icon=”fa-folder” icon_position=”left” icon_divider=”yes” modal=”” animation_type=”0″ animation_direction=”left” animation_speed=”1″ animation_offset=”” alignment=”center” class=”” id=””]Webinar PowerPoint[/fusion_button][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”” sep_color=”” border_size=”” icon=”” icon_circle=”” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

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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Charles Feeny is recognised by Chambers & Partners as ‘working at the forefront of technological changes for the legal services with our digital business – Complete Counsel.’

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Charles Feeny is recognised by Chambers & Partners 2016 as ‘working at the forefront of technological changes for the legal services with our digital business – Complete Counsel.’

Charles is also recognised for his superb advocacy skills and the ability to always be relied upon to provide the right answer in complex and high value cases together with an ‘innovative approach’ to clin neg litigation.

Proving the Difference?

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Case Background

The Court of Appeal today handed down Judgment in the case of Christine Reaney v University Hospital of North Staffordshire NHS Trust and Another allowing the Defendant’s appeal against the Order of Mr Justice Foskett. The Court of Appeal have remitted the case to Mr Justice Foskett for further determination in the light of their directions as to law.

Mrs Reaney is a T7 paraplegic caused by transverse myelitis whose condition was substantially aggravated by bed sores for which the Defendants admitted liability. Mr Justice Foskett in effect awarded the Claimant damages in respect of all the consequences of her paraplegia for which the Defendants were not responsible rejecting the Defendant’s case at Trial that they should only be responsible to the extent that the bed sores had created additional loss. Mr Justice Foskett justified this approach by reference to the requirement for full compensation and by comparing her but for situation in factual terms with her current reasonable needs.

The Court of Appeal considered that Mr Justice Foskett’s approach was wrong in law and that he should only have awarded damages in respect of the additional injury. The Claimant in fact conceded that during the course of argument that an approach based upon taking into account the Claimant’s financial circumstances in assessing causation of loss as opposed to quantification of loss was wrong in law. Accordingly the comparison has to be between the Claimant’s reasonable needs in each scenario without reference to whether the Claimant could afford to finance her reasonable needs in the but for situation. (Paragraph 19 of Judgment).

The Respondent’s case on appeal was essentially based on the authority of Sklair and the Claimant sought to argue that her new needs were qualitatively different to her old needs which would result in the old needs being disregarded in the assessment of damages. The Court of Appeal considered that Mr Justice Foskett had not made a finding to this effect nor that there was evidence to support the same. The Court of Appeal remitted the case for rehearing.

In terms of rehearing and future cases, consideration will have to be given as to the nature and extent of the difference between pre-existing needs and current needs which would justify the pre-existing needs being disregarded. On a reasonable understanding of the law, this situation would only arise where the pre-existing needs were collateral and bore no comparison with the existing needs. Insofar as there were greater needs in terms of hours of care or even quality of care , this could be subject to quantification by comparing the different care regimes. It is only in the Sklair situation where there is no real comparison between the two situations,resulting in the pre-existing care no longer being necessary, that the but for position can be disregarded.

Consideration will also have to be given as to the process by which the damages for additional injury are assessed and specifically to what extent the Court can have regard in this context to the Claimant’s inability to finance her pre-existing reasonable requirements.

Contributor Comments

Please see below for the Court of Appeal Judgment

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