February 2009 Case Law Reports
The Claimant sustained serious head injuries when his bicycle collided with the Defendant’s motorcycle. The Claimant had no memory of the accident and the Defendant was the only witness. The speed limit where the accident occurred was 30 mph. The Claimant’s case was that the Defendant had ridden his motorcycle along the road at an excessive speed, failed to keep a proper look out and failed to see the Claimant, who was on the proper side of the road at all times.
The Defendant made a Part 20 claim against the Claimant for personal injury, arguing that he had not been driving at excessive speed and that the Claimant had pedalled out of a side road into his path and given him no opportunity to avoid a collision. He further claimed that the Claimant’s injuries had been sustained wholly or partly because he had not been wearing a helmet, which was contributory negligence on the Claimant’s part.
It was held on the balance of probabilities, that the Defendant had been travelling at a speed well in excess of the 30 mph restriction and the collision occurred as he tried to overtake the Claimant. He was therefore entirely to blame for the collision by virtue of his excessive speed and driving much too close to the Claimant as he tried to overtake.
It did not matter that there was no legal compulsion for cyclists to wear safety helmets because there could be no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury, like the failure of a car user to wear a seatbelt (Froome v Butcher [1976] applied). On the balance of probabilities, the Claimant had hit the ground at a speed greater than 12 miles per hour so the wearing of a helmet would have made no difference to the injuries sustained. Moreover, the shape of most modern helmets would probably not have prevented the Claimant’s injuries, given the location of the impact on the back of his head. The Defendant had adduced no medical evidence to support his case that the Claimant’s injuries would have been reduced or prevented by his wearing a helmet. Accordingly the Defendant had failed to discharge the burden of proving contributory negligence.
Jacqueline Anne Rogers v East Kent Hospitals NHS Trust
Mrs Rogers appealed against a decision that her claim for personal injury was time barred. In 1997, she had undergone a surgical amputation of the left second toe for the correction of a “hallux valgus”, or bunion, on her left foot. The operation was unsuccessful and Mrs Rogers developed progressive valgus drift of the great toe with a recurrent bunion. Consequently, she suffered severe pain in the toe and foot. In 2003 she was referred to an orthopaedic surgeon who discussed alternatives to the surgery in 1997. Mrs Rogers then instructed solicitors and obtained an expert opinion. She discovered that the surgeon had failed to implement the fitting of a toe spacer and surgical shoes, and that the trust had delayed when performing the corrective surgery. She issued her Claim Form in 2003.
A preliminary issue arose in relation to the date when Mrs Rogers had constructive knowledge under the Limitation Act 1980 S.14(3). The Judge determined that Mrs Rogers should have sought further advice in 1997 or 1998 about the failed amputation. Thus it was held at first instance that Mrs Rogers constructive knowledge was at those dates and her claim was therefore statute barred. The Judge refused to exercise his discretion under Section 33.
Mrs Rogers submitted that the Judge (1) failed to make a finding as to the actual date of accrual of her cause of action and her date of knowledge within the meaning of the Act (2) incorrectly attributed “knowledge” to her within the meaning of Section 11 and Section 14 of the Act on the grounds that she did not visit her GP or seek expert medical opinion sufficiently promptly and (3) the Judge refused to exercise his discretion under Section 33 of the Act on the incorrect assumption that it would have caused significant prejudice to the Defendant.
It was held that as to the issue of knowledge, the Judge’s conclusions were not supported by the evidence. He had to address the issue that, after the amputation, Mrs Rogers had been reassured that the pain would go away. Moreover, she was given no explanation as to why her bunion was returning or why her pain was ongoing. The Judge had accepted that Mrs Rogers made regular visits to her GP and orthopaedic consultant after the amputation, so it had to follow that in those meetings nothing had been said or put to her regarding alternatives to amputation surgery. On the basis, the Judge did not have sufficient regard to Mrs Rogers’ evidence that she went along with what the doctors told her and had thought nothing of litigation in 1997 and 1998. On all of the evidence, Mrs Rogers first date of knowledge had to be in 2003, during the consultation with the orthopaedic surgeon. Even if the Judge correctly attributed Mrs Rogers with knowledge in 1997 or 1998, he should have exercised his discretion under Section 33. The evidence that the Defendant would suffer a significant prejudice was not persuasive and, in those circumstances, the court should ensure fairness by allowing Mrs Rogers’ claim to proceed. The appeal was therefore allowed.
Simon Powell v Neil Michael Auden
The Claimant and Defendant were both motorcyclists travelling in opposite directions along the same carriageway, towards a bend in the road. The Defendant’s motorcycle skidded as it took the bend, crossed over the centre white line and into the Claimant’s path, causing the collision. Both riders sustained head injuries and were unable to remember the accident. There were no witnesses. Each party blamed the other for the accident. The Claimant’s case was that he was at all times on the correct side of the carriageway, and that it was the Defendant who had crossed on to the wrong side of the road. The Defendant accepted that the Claimant’s motorcycle was at all material times on the correct side of the road, but contended that the Claimant had come sufficiently close to the centre white line for his handlebars to encroach upon the wrong side of the road and to cause his head to overhang. The Claimant argued that the Defendant was bound to be found negligent in view of the fact that he had skidded, lost control of his motorcycle and gone off to the wrong side of the road where he collided with the Claimant.
It was held that there could be no doubt that to skid, lose control of ones motorcycle and go on to the wrong side of the road, thereby colliding with another vehicle, was prima facie negligent driving. Therefore the burden was, at least initially, on the Defendant to put forward an explanation for his being on the wrong side of the road. On the evidence, there was no reason for the Defendant to have adopted emergency braking. There was no reason for the Defendant to have supposed that the Claimant’s motorcycle was going to come on to his side of the road and it was reasonable to infer that it was the Defendant’s failure to move further to his nearside on seeing the Claimant, which was due to inadequate lookout or inexperience of the bend of the road, or both. Therefore the Defendant’s braking, skidding and going on to the wrong side of the road was caused by his own fault and not by the Claimant.
Grant Couzens v T McGee & Co Limited
The Claimant was an employee of the Defendant and appealed against a decision to dismiss his claim for personal injury. The Claimant transported waste in a tipper lorry. He suffered injuries when his lorry overturned, as he had been driving too fast. He claimed that he had been unable to move his right foot from the accelerator to the brake, as a piece of scrap metal that he kept in the side pocket of the driver’s door had caught in his trouser leg. The Claimant used this piece of scrap metal as a makeshift tool for a variety of tasks, such as scraping mud from the lorry’s tyres. He claimed that he kept it in the pocket of the driver’s door because there was no where else suitable in the lorry. He also claimed that his foot had been trapped by the scrap metal a month earlier, but he had extracted himself without much difficulty on that occasion. He did not report the event to his employer, or alter his practice of keeping the scrap metal in the door pocket.
The Claimant unsuccessfully claimed for damages for personal injury under the Provision and Use of Work Equipment Regulations 1998, on the grounds that the Defendant had not provided a suitable place in which he could safely keep him makeshift tool. The recorder found that although the employer knew that several of its drivers provided their own small scraping tools to use where necessary, the tool was not a necessary piece of equipment and the employer could not reasonably have foreseen that the Claimant would use the scrap metal and store it as he did. Therefore, there was no liability.
It was held on appeal that, if an item of equipment that had not been supplied by an employer was being used at work, it would not be “work equipment” for the purposes of the Regulations unless the employer expressly or impliedly permitted its use or must be deemed to have permitted its use. Deemed permission would be inferred where the employer ought to have realised that an item was being used but apparently had not and therefore did nothing to stop it. The employer did not know that the Claimant was using the scrap metal or transporting it in the door pocket, which meant that the employer could not have either expressly or impliedly given permission for the Claimant to use it. The Claimant’s appeal was therefore dismissed.