Stephanie Eedy, Partner in the Insurance and Corporate Risk team, takes a look at four recent defendant successes.
The last month has seen some particular successes for defendants as the following cases will illustrate:
Highway authority partially successful on appeal:
TR -v- Devon County Council (Court of appeal 30.4.13)
T’s tyres hit a pothole on a country road in Devon causing him to lose control and his passengers suffered serious injuries. At first instance the council was held liable and in breach of s.41 Highways Act 1980 on the basis that the road was dangerous and that the six monthly inspection did not make out the s.58 defence. The judge did not consider the council had justified its departure from the monthly inspections required of the non statutory code of practice for “well maintained highways”.
The judge had been entitled to find that the road was dangerous and caused the loss of control. Whilst the code of practice was not mandatory and six monthly inspections can be considered reasonable, the court was satisfied that there was evidence in this case that inspections were needed at shorter intervals. Therefore the s.58 defence was still not made out. However, the council’s appeal on grounds that T was negligent was successful and his contributory negligence was assessed at 50% on the grounds that the rutting in the road was there to be seen and he should have avoided it.
Comment: the Code of Practice has no statutory effect as recognised by the court and can be departed from with justification.
Pedestrian loses her claim for a 2m fall from a footpath:
Tacagni -v- Cornwall County Council; Penwith DC & Hayle Town Council (Court of Appeal 24.4.13)
This is a practical reminder of the duties owed under s.2 Occupiers Liability Act 1957 (“the Act”) to take reasonable care to see that a visitor is reasonably safe. Penwith DC successfully appealed against a Judge’s decision that it was one third liable for injuries the claimant sustained and raised an important consideration of the duties owed under the Act.
The claimant had been walking home in the dark with her partner along a raised pathway which was 2m above and alongside a road. They decided it was too dark and turned back. Whilst her partner left to call a taxi she used a fence to guide her along the path. It only covered a portion of the path and she crossed a grass verge and fell off the edge of the raised section onto the road below. The judge found she had been moderately under the influence of alcohol.
The fence had been erected around an area of the pathway’s retaining wall which had collapsed six years earlier. The local authority had raised concerns about the risk to cyclists and children about the lack of physical barrier along the edge. There had been no accidents prior to the claimant’s. The judge held the Local Authority was in breach of duty in failing to erect a fence but that she had contributed 66%.
On appeal the Judges noted that at the time the fence was erected the risks the Local Authority recognised were not related to circumstances similar to the instant case. It was difficult to imagine that a person would use the fence as a guide and would not appreciate he/she was departing from a path and crossing a large area of grass. The judge at first instance had failed to take account the degree of care expected of an ordinary visitor and the LA succeeded in its appeal.
Comment: It is reassuring to know that the law does expect us to take reasonable care for our own safety.
Mother loses her claim against school for the death of her daughter
Jennifer Wilkin-Shaw (administratrix and mother of Charlotte Shaw) -v- Christopher Fuller; Kingsley School Bideford Trustee Co Ltd (Court of appeal 18.4.13)
A 14 year old school girl died on a school trip on Dartmoor. Her mother and administrator of her estate brought a claim for damages against a teacher and his employing school for loss to the estate and psychiatric injury.
The first defendant was the team manager responsible for training 11 children for an annual expedition. In a training weekend the 11 children were accompanied by four adults. After the first successful night the children were allowed to progress to walking unaccompanied being met by teachers at checkpoints. Two of those teachers failed to meet the group, losing their way. The first defendant advised them by telephone to proceed with the route with one scoutmaster and to walk around (not cross) the head of Walla Brook. The scoutmaster showed the group how he had crossed it earlier. The schoolgirl fell in and drowned.
The court held that one of the teachers who failed to meet the group was negligent but it was speculation to suggest that had she met the group at the checkpoint that the situation would have been different. The scoutmaster’s actions broke the chain of causation and the claimant’s appeal against the dismissal of her claim failed.
Comment: a sad outcome for the family but which shows that despite the circumstances the breach itself did not cause the loss (said to be claimed at £350,000 and claimant’s costs estimated at £1.5 million).
Insurer successfully defends claim for brain damaged passenger
Nicholas George Smith -v- Jonathan Fordyce and Quinn Insurance Limited (Court of Appeal 10.4.13)
Fordyce skidded on black ice and crashed into a wall and injuring his passenger (Smith) was not at fault – he had not driven at excessive speed, in icy conditions which were not visible and not reasonably foreseeable.
Fordyce was insured by Quinn. Smith was a passenger in Fordyce’s car and they were travelling to work along a road which was susceptible to water from a redirected stream. Fordyce’s car skidded on black ice and crashed into a wall. Fordyce and Smith did not appear significantly injured and a witness at the scene agreed water would flow into the road and cause ice. Fordyce told that witness he had skidded on ice and the police noted it was not initially visible. Three years later Fordyce bumped into Smith who told him he had sustained brain injuries and was still suffering severe effects. Fordyce changed his statement (presumably to help Smith claim from Quinn) and said he’d scraped ice from the car that morning and that the accident was his fault as he had been driving too fast.
The judge said the initial report was the correct position i.e. Fordyce had lost control due to black ice. Smith appealed but his claim was dismissed, the court of appeal ruling that to say that a careful driver might be capable of driving on a dangerous road without an accident was one thing, but to say that a person who suffered an accident because of dangerous road conditions was axiomatically careless was quite another.
Comment – despite his “innocent” passenger status negligence must still be proven and a clear demonstration of the importance of contemporaneous evidence.
No doubt these successes saw recovery of the defendant’s costs. It will be interesting to see in the future how successful appeals will be treated insofar as costs are concerned and whether, QOCS ruling will apply to them… food for thought in the post Jackson regime…