Monday, 20 March 2017

Legal Update Spring 2017


Contributory Negligence (1) undertaking a left turning vehicle
In McGeer v Macintosh (2017) the Court of Appeal had to consider the sadly common event of a left turning HGV colliding with a cyclist to the nearside on a city street (in this case Ellesmere Port).  The HGV had been at a set of traffic lights, indicating left, ahead of the Claimant on her bicycle.  Because of the length of his vehicle he straddled both a left/straight lane and a lane marked for turning right.  Immediately behind him was a car that obscured his rear left turn indicator.  He claimed to have looked in his left mirror before moving off when the light changed green in his favour.  The Claimant on her bicycle, travelling at no more than 16.5 mph undertook the car and then the lorry.  As she undertook the lorry its driver turned left and the collision occurred.
There was debate about whether the Claimant should have been visible in the driver’s mirror before he moved off.  There was certainty that she would have been visible after he moved off but immediately before he turned.  The Defendant disputed that he was liable at all but this was rejected.  He should have been aware of the potential for an undertaking cyclist and that his indicator may have been obscured by a following vehicle.  He should have checked his mirror before moving off and again before turning.  He was liable.
The Claimant though contributed to the collision.  She should not have made any assumption about the intended direction of the lorry.  The trial judge assessed her contribution at 30%.  The Defendant challenged this saying that the greater speed of the bicycle compared to the HGV made her responsibility the greater.   The Court of Appeal, in agreement with the trial Judge, had no difficulty rejecting this:
“I consider that whilst the judge had found that both parties were at fault in the respects identified by the judge, it was appropriate for him to take into account the causative potency of the HGV, given the likelihood of very serious injury to a cyclist in the event of a collision. Although Mr Herbert sought to discount this on the basis of the low speed of the HGV, I consider that the judge was entitled to find that it was potentially a very dangerous machine. Its size and bulk were such that in the event of collision it constituted a very serious danger to a person in the position of the claimant.”
The Court opined that this case raises no issue of law, precedent or other matters of general significance and that the result is of significance only to the parties.  However cases on the actual apportionment of liability where a cyclist has undertaken a left turning vehicle are thin on the ground and Defendants’ insurers will often seek a 50% or so reduction in such cases.  This decision reaffirms that the degree of hazard presented by the vehicle (great in the case of an HGV, very modest in the case of a bicycle) are very important factors when apportioning liability.

Contributory Negligence (2) Time trialling and failing to avoid an emergency created by another
In Rickson v Bhakar (2017) the High Court made a finding of contributory negligence of 20% against a claimant who was taking part in a time trial on the A27 dual carriageway.  The defendant driver had been travelling in the opposite direction and turned right through a gap in the central reservation into the Claimant’s path.  Although the claimant had swerved immediately before the collision it was found that he could have braked earlier.  As a consequence of his injuries the claimant was not in a position to explain what had occurred.  It was inferred that he either had his head down or was too focussed on his performance.  A tough lesson that even in the heat of competition a cyclist must be alert and ready to respond to the carelessness of other road users.

Potholes
Potholes are of particular concern to cyclists.  The divergence of judicial opinion over the extent of a Highway Authority’s duty to maintain the roads is illustrated by the Court of Appeal decision in the case of Crawley v Barnsley MPC (2017).  This case involved a jogger at the weekend.  The majority of the Court of Appeal found that a Highway Authority should have in place a workable system for dealing with dangerous defects reported to them over the weekend.
Of interest more specifically to cyclists is a Surrey Coroner’s decision to make a ‘Prevention of Future Deaths’ report directing highway authorities to have specific regard to the dangers presented to cyclists by hazards anywhere in the road, and not just on cycle lanes/paths.  I will comment further once the PFD is published.

The discount rate
A significant development on the quantum of serious personal injury cases, including those affecting cyclists, is the Lord Chancellor's determination that the ‘discount’ rate whereby damages for future loss are adjusted due to receipt in advance of expenditure, be reduced from 2.5% to -0.75%.  The rate has been 2.5% since it was first set by the then Lord Chancellor in 2001.  Prior to 2001 the discount rate had been a matter for the Courts and when I started practice was as high as 4.5%.  The effect of the change is that damages for future loss sustained some years ahead (for example compensation for care needs required in the future) will be much greater.  To some extent this may be balanced by the fact that compensation for having to sink additional capital into housing to meet the needs of a disabled person are likely to be reduced or even, arguably, eliminated.
The insurance industry has been scathing about the change.  However if they had been paying attention to what has been happening in jurisdictions which apply English law, but where the Courts continue to set the discount rate, they will have noticed that negative rates have long been a feature.  The leading case was from Guernsey and just one year ago a client of mine benefitted from the Court of Appeal in Bermuda adopting the same approach.
A negative discount rate may appear counterintuitive.  It arises because the costs of, for example personal care, will increase with wage inflation.  In contrast investment in the most secure available investments, such as index linked gilts, will increase at a rate lower than wage inflation.  It is harsh to require a severely disabled claimant to take a market risk by investing in equities since she may end up investing at a peak and will have no alternative source of income from which to take advantage of any troughs.  Nor will she be able to defer realising investments to cover the wages of her carers.
Tantalisingly though the Lord Chancellor has indicated that the whole basis of her power to set the discount rate in the Damages Act will be the subject of further review.

Finally no discussion of the discount rate would be complete without mentioning the alternative, long favoured by the National Health Service, but also now more attractive to motor insurers, of providing for future needs by regular periodical payments indexed to a suitable measure of inflation.

1 comment:

  1. "Finally no discussion of the discount rate would be complete without mentioning the alternative, long favoured by the National Health Service, but also now more attractive to motor insurers, of providing for future needs by regular periodical payments indexed to a suitable measure of inflation."

    Strange, but every other discussion I have seen on this subject has managed to avoid mentioning this alternative. Thank you for the update, Martin - more power to your elbow.

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