Wooldridge v George QBD (Judge Walden-Smith) 23rd January 2017

The claimant, who had been drinking, was struck whilst crossing the road between two pubs. The defendant was driving at 20mph, had not been drinking, and was not distracted. Notwithstanding this, she had failed to see the claimant. In all the circumstances, had she been negligent

HELD:

The expert evidence suggested the claimant had been in the road when the defendant was 20 metres away. Although the claimant was wearing dark clothes, the carriageway was well lit and his bare face and arms contrasted with the dark surface of the road. There was nothing preventing him being visible. The defendant should have seen him from approximately 6 metres away and taken evasive action. An emergency stop would not have been required, only a slight steering adjustment. The incident occurred at a junction and a reasonably careful driver would have considered it likely that people would be looking to cross the road.

There was a degree of contributory negligence on the part of the claimant but his carelessness had not been the predominant cause of the accident. He was in the road and ought to have been seen. Contributory negligence was assessed at 30%.

February 17, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Why it’s Worth Paying to Hire a Motoring Solicitor

Consideration was given for the editing and publication of this post.

If you’ve recently been caught speeding, whether by a speed camera or by police officers, you will probably still feel very shocked and worried about the future.

It may be your first offence, in which case you will probably receive a Fixed Penalty Notice (FPN), which consists of a £100 fine and three penalty points. If you feel this is a reasonable state of affairs, then you should pay the fine and learn your lesson.

Sadly, however, not everyone caught speeding feels they’re being treated fairly by the law, which is where specialist solicitors like motoringoffencelawyers.com come in.

Speed cameras keep us safe, but…

In recent years the number of speed cameras alongside our roads has increased and while it’s thought they save dozens of lives every year, they are also catching drivers who are only just outside the speed limit.

This means that more and more drivers may be receiving FPNs than, realistically, should do. A slight lapse in concentration for a few seconds could see a driver slapped with three penalty points, which may affect their job or their insurance premiums.

If you know you were speeding…

You can still benefit from strong legal representation. You may have been late for an important meeting, or you were rushing to work and decided to put your foot down just for a few seconds. The gamble didn’t pay off and now you’re facing a court case because you went quite a bit over the speed limit, or you were on the motorway and you’re looking at a large fine.

Hiring a legal team to help you works in two ways. First and foremost, they can look for inconsistencies in the way the evidence of your speed was collected by the police and also look for any failures to follow strict Home Office procedures. If there are any holes in the evidence, or a vital step in procedure was missed out or not performed properly, then the prosecution case may be unreliable. Savvy, experienced lawyers can see glaring errors that you may not, as you’re too busy fretting about how you’ll pay the fine or do without your car for six months.

Secondly, you’ll have tough, knowledgeable people who are also on your side. It’s easy – and understandable – to feel guilty and judged when you’re being prosecuted for a driving offence. No-one wants to put other people in danger, or be thought of as careless or negligent and you’ll probably already be on the receiving end of comments and criticism. This, on top of feeling worried about your job security, makes for a lonely and scary time.

Motoring lawyers can give you peace of mind

With a good solicitor behind you, you’ll know that you’ll be going into court with strong representation and so you’ll get fair treatment by the magistrate or judge, as well as the best outcome possible. Whether it’s getting your case dismissed entirely, or reducing your £2,500 fine and 12-month ban to £1,100 and six months, you’ll be better off with motoring lawyers than you will be without them.

February 16, 2017 · Editorial Team · Comments Closed
Posted in: News

Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305

The Court of Appeal set out the approach to be taken when considering an appeal from the decision of CICA in relation to a decision not to waive the time limit in the Scheme with respect to a claim which had been brought 40 years out of time. The FTT upheld the decision; but the UT allowed an appeal on the basis that the FTT had erred in its approach to the question of whether the deceased ex-partner (who had brought the claim) was a qualifying claimant under the Scheme; the approach to the deceased’s conduct had been inconsistent; and the tribunal had engaged in ‘speculation without evidence’ on when the deceased’s children had sufficient information to bring a claim.

Held:

• The court had to exercise restraint and proceed with caution before interfering with decisions of specialist tribunals. It was important to identify the tribunal of fact, to keep in mind that it had heard the evidence, and to respect its decisions. When determining whether a question was one of fact or law, the court should have regard to context, so as to ensure both that decisions of tribunals of fact were given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field, AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 A.C. 678 and R. (on the application of Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, [2013] 2 A.C. 48 applied.

• The tribunal and not the UT was the tribunal of fact in the instant case. The UT’s jurisdiction was limited to one of judicially reviewing the tribunal’s decision. The UT had no jurisdiction to interfere with the tribunal’s decision, absent a public law error. The instant case was not one calling for guidance from the UT to shape the development of law and practice in respect of claims under the scheme. It followed that in classifying issues before the tribunal as those of fact or law, questions of context could have, at most, only very limited bearing

• The UT decision was untenable and could not stand.

January 28, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Worral v Antoniadu [2016] EWCA Civ 1219

A consultant plastic surgeon appealed against a finding of negligence arising from the respondent’s claim for an unsatisfactory breast augmentation operation. The respondent had alleged that she had undergone the operation in reliance on the negligent advice of the surgeon. At first instance the judge had found that the surgeon had unintentionally allowed the respondent to leave the consultation with the impression that after breast augmentation a more invasive mastopexy would not be needed for 5-10 years; whereas in fact the Claimant was advised following the augmentation procedure that a mastopexy was required in 10 months.

Held: The surgeon had been found negligent because she had failed to dispel an impression which she had not herself expressly given and which she had neither known nor ought to have known the patient had somehow derived. The question which the judge ought to have asked himself was whether anything said or done by the surgeon at the consultation would have been reasonably understood by a patient in the patient’s position as an assurance that it would be between 5-10 years before she would require a mastopexy. A defendant medical professional ought not to be liable in such circumstances unless she was responsible for the patient getting the wrong impression or, having realised the misapprehension or in circumstances where she ought so to have realised, took no steps to dispel it.

January 15, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Secker v Fairhill Property Services and others, QBD (Judge Cotter QC), 17th November 2016

The Claimant owned a new build property which had been constructed by the First Defendant. She fell over a step in the garden and suffered serious injuries. Her pleaded case was that the First Defendant had breached the contract of sale by failing to complete the work to a satisfactory standard and in compliance with building regulations.

The Claimant made three applications one week before trial. Only one was opposed. By this application, the Claimant sought permission to amend her particulars of claim to allege that there had been a breach of common law duty.

HELD:

The application was refused. There was no real reason advanced in support of the amendment which appeared to simply represent a late change of mind. The new allegation was substantially different and could not be met by the Defendants on the basis of the current evidence, certainly not without additional work. Allowing the amendment would require the trial date to be vacated if the Defendants were not to be faced with a new allegation at a very late stage.

December 28, 2016 · Editorial Team · Comments Closed
Posted in: Cases

Dean & Chapter of Rochester Cathedral v Leonard Debell [2016] EWCA Civ 1094

A cathedral appealed against a finding that it was liable for the injury suffered by the respondent. The respondent alleged that he had tripped over a piece of concrete which stuck out from the bottom of a bollard within the cathedral precincts.

HELD: (1) A trial judge must strike a balance between the nature and extent of a risk and the cost of eliminating it when assessing whether a visitor would be reasonably safe in using the premises for the purposes of the Occupier’s Liability Act 1957. Not all foreseeable risks are sufficiently serious to require an occupier to take steps to eliminate them. The assessment of this seriousness amounts to an exercise of judgement by a trial judge.

(2) The trial judge in this case did not recognise in his judgment that not all foreseeable risks require action to be taken by the occupier. He could not have reached the decision he did if he properly took a practical and realistic approach to the dangers which the cathedral was required to rectify. The piece of concrete was extremely small and could not be said to pose a real danger to pedestrians.

December 15, 2016 · Editorial Team · Comments Closed
Posted in: Cases

Adams v Gibson (2016) QBD (Judge Freeman) – 26 October 2016 [Doc No: AC9402056]

The court determined liability and contributory negligence as a preliminary issue in a claim for personal injury brought by the Claimant, a pedestrian, who was struck by the Defendant’s vehicle while attempting to cross a road. The Claimant, who had been drinking, sustained serious brain injuries and consequent loss of capacity.

Held: (1) On the balance of probabilities, the accident had occurred at about 20-25 mph just before a raised pedestrian crossing; (2) before crossing, the Claimant had briefly stopped at the kerb, which allowed time for the Defendant to brake; it was foreseeable that the Claimant might step into the street, and yet the Defendant had failed to observe him or slow down such as to avoid a collision; he therefore failed to exercise the care of a reasonably prudent motorist; (3) the Claimant had not only failed to look right before crossing but he had also chosen not to cross at the crossing itself; had he done so, the collision would have been avoided. His failure to take care was linked to his alcohol consumption. The court gave judgment for the Claimant, but discounted damages by one third due to contributory negligence.

November 28, 2016 · Editorial Team · Comments Closed
Posted in: Cases

London Borough of Sutton v Edwards [2016] EWCA Civ 1005

The question for the court was whether a first instance judge was correct in deciding that the appellant local authority owed a duty under section 2 of the Occupiers’ Liability Act 1957 to ensure that visitors were safe in using a small ornamental bridge in a park, notwithstanding that there was nothing wrong with the state of the premises and no history of previous accidents. The judge distinguished between section 2 of the Act and section 1(1)(a) of the Occupiers’ Liability Act 1984 which regulated whether a duty was owed by reason of any danger due to the “state of the premises” and held the local authority should have identified and assessed the risk of a fall from the bridge and warned users accordingly.

Held: (1) The provisions in the two Acts were not materially different: both required a clear identification of the dangers of the premises, on which the judge had not adequately focused. While an unfenced bridge presented dangers objectively constituting a danger from which a duty of care arose, that clearly did not mean that railings or warnings were required: Tomlinson v Congleton BC [2003] UKHL 47 followed; (2) a formal risk assessment would not have produced anything other than a statement of the obvious, and would not have lessened the possibility of the accident occurring; (3) there was no requirement for the local authority to fit railings.

November 15, 2016 · Editorial Team · Comments Closed
Posted in: Cases

Richard Andrew Campbell v Robert Campbell [2016] EWHC 2237 (Ch)

The Claimant was a litigant in person. A costs management hearing was held. The Claimant wished to obtain legal assistance falling short of a firm of solicitors having conduct of the litigation. These solicitors would then instruct a barrister who was not Direct Access qualified. The Court considered: (1) to what extent CPR r3.13 to r3.18 (the costs management regime) applied to a litigant in person’s costs; and (2) whether to grant a declaration that the Claimant could recover the costs of the assistance he wished to receive under r46.5.

HELD:

(1) The Court could order a litigant in person to produce a costs budget. It could also make a costs management order in relation to a litigant in person’s costs.

(2) r46.5(3)(b) allowed payments “relating to the conduct of proceedings” to be recovered. There was no reason to construe this narrowly so as to prevent a litigant in person recovering the costs of assistance. Use of the Direct Access scheme was likely to assist with progressing the claim in an orderly manner and would therefore assist the Court.

October 28, 2016 · Editorial Team · Comments Closed
Posted in: Cases

Jacqueline Ann Smith v (1) Lancashire Teaching Hospitals NHS Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice [2016] EWHC 2208 (QB)

The Claimant cohabited with her partner for over two years before he died as a result of the negligence of the First and Second Defendants. Under s.1A(2)(a) of the Fatal Accidents Act 1976 (as amended), two year plus cohabitees were not entitled to bereavement damages. The Claimant sought a declaration regarding the interpretation of s.1A(2)(a), or a declaration that the section was incompatible with the Human Right Act 1998.

HELD: (1) To demonstrate that Article 8 was directly engaged the Claimant must show a direct and immediate link between the restriction and her private and family life: Swift v Secretary of State for Justice [2012] EWHC 2000 (QB). Article 8 could be engaged even where the family member in question was deceased. However, the denial of a bereavement award to two year plus cohabitees did not imply that their grief was considered less valuable by the state than the grief of a spouse. The Claimant failed to show that Article 8 was directly engaged.

(2) Once it had been decided that a measure did not engage Article 8, that measure would often fall outside its ambit for the same reasons. The lack of a right to compensation for grief was not linked at all to her private life and was only tenuously linked to her family life. That conclusion was in line with the R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 four-stage test.

(3) Had it been necessary to decide, the Claimant had “other status” for the purposes of Article 14 because she was in a relationship closely analogous to marriage with the deceased. The similarities between the situations was sufficient to require any discrimination infringing rights within the ambit of Article 8 to be justified.

(4) As the Law Commission has identified, the current law requires reform. If Articles 8 and 14 had been engaged, the Secretary of State had not established justification for the differences in treatment.

(5) It would not have been possible to read s.1A(2)(a) so as to include two year plus cohabitees. The right remedy, had the claim succeeded, would have been a declaration of incompatibility.

October 15, 2016 · Editorial Team · Comments Closed
Posted in: Cases