FOCIS
FOCIS

17 year old with severe head injuries


R (Claimant) and M (First Defendant) and P (Second Defendant) and School A (Third Defendant) and Community Association A (on behalf of Strong Tower) (Fourth Defendant) and Insurance Company A (Fifth Defendant) and Insurance Company B (Sixth Defendant)

Judge Main QC sitting as a Deputy Judge of the High Court

This was a preliminary trial on liability arising out of a running down accident on a main arterial road in Wigan on the night of the 23 February 2005. The accident left the then 17 year old Claimant with severe head injuries. Both the cause and precise manner of happening of the collision were live issues at trial.

The Parties

The Claimant was a student attending the Third Defendant's sixth form college when she enlisted as a volunteer to engage local underprivileged children in media based activities on a specially adapted mini bus. The project was spearheaded as a joint enterprise between the Third Defendant and the Fourth Defendant. The Third Defendant owned and equipped the mini bus and the Fourth Defendant was an unincorporated association involved in charitable works.

The Second Defendant acted as a conduit between the Third and Fourth Defendant, being an employee of the former and a minister with the latter. In addition the Second Defendant was the driver, manager and supervisor of the project

The First Defendant was the driver of the vehicle which collided with the Claimant on the main road.

Due to a dispute regarding insurance, the public liability insurers of the bus joined themselves as the Fifth Defendant to the proceedings and the RTA insurers of the bus joined themselves as the Sixth Defendant.

The Events

The practice developed whereby the Claimant and other volunteers, would assist the multi media bus at the end of the session, to reverse from its stationary position in the side road church car park onto the main road and if necessary, stop traffic. As well as being inherently dangerous, such a manoeuvre is contrary to the Highway Code.

The Claimant due to her injuries had no recollection of the events. Evidence at the trial from the volunteers maintained that the Claimant was stationary in the north bound lane facing oncoming traffic with her arm out to stop any vehicles when she was struck by the First Defendant's vehicle.

The Arguments

The First Defendant was not able to say how the Claimant got to her position in the road. As well as referring to the darkness as a contributory factor, he relied on the evidence of a witness that the Claimant walked backwards into the main road from the side road without looking.

The Second Defendant was focused on manoeuvering the bus, which was old and not easy to manoeuvre, and the Second Defendant was an inexperienced driver.

As the Second to Fourth Defendants had no direct case to present, they built their case on the First Defendant's failings. Shortly before trial it was agreed that D3 and D4 were vicariously liable for the actions of D2. Previously it had been contentious between D5 and D6 in the event that there was a liability finding whether the risk and relevant insurer was RTA risk if the bus was in motion at the time of the accident or a Public Liability risk given the failure to protect the volunteers in the course of their volunteering.

The Decision

The First Defendant's negligence was found by Judge Main QC to be causatively potent because on the balance of probability, 'the earlier observation of Claimant ought to have brought about braking much sooner and the likely avoidance of the accident'.

The Second Defendant was found to be negligent through his omission to apply his mind to the issue of the safety of the volunteers.

The Third and Fourth Defendants were vicariously liable for the Second Defendant and negligent in their own right for their failure to ensure a proper system of health and safety was in place.

The Fifth and Sixth Defendant resolved their coverage dispute and their position was consolidated by way of an undisclosed agreement with the Second to Fourth Defendant.

With regard to contributory negligence, Judge Main QC took into account the guidance of Lord Ackner in the House of Lords case of Fitzgerald v Lane [1989] AC 328. The fact that the Claimant had not been instructed as to what to do, had not been kept safe, as well as her age and lack of experience in undertaking such an activity, was weighed as against her lack of concentration and failure to keep a proper look out when entering the main road.

Following a three day trial, judgment was given for the Claimant with liability apportioned as 50% to the First Defendant, 35% to the remaining Defendants and 15% contributory negligence on the Claimant's part. The First Defendant was found to be more blameworthy than the Third and Fourth Defendants (on behalf of the Second Defendant) because in Judge Main QC's words, 'while the fact of allowing a 17 year old in dark clothing to be undertaking traffic direction at night is blameworthy, the First Defendant's failure was more blameworthy driving a vehicle not keeping a proper look out when there was a number of pedestrians about and some on the carriageway'.

Subsequently, Judge Main Q.C. made an issue based costs order.

Carol Jackson Pannone LLP
Nicholas Braslavsky Q.C. and Nigel Poole for the Claimant

Greenwoods
Ronald Walker Q.C. and William Audland for the First Defendant

Patrick Field Q.C.
DWF
Forbes
Beevers
Weightmans
Keoghs  for Second, Third, Fourth, Fifth and Sixth Defendants.

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