Liability, chain of causation, Contributory Negligence, Art 75 and meaningful degree of negligence

Mulroue v Femor (1), Chaucer Syndicates Ltd (2), Jones (3), Zurich Insurance Plc (4) [Nov 2018]

The claimant brought a claim in relation to a road traffic accident on 17 September 2014 involving 4 vehicles.

The lead vehicle was driven by Fermor, the first defendant, the second by Jones, the third defendant. The claimant was driving the fourth vehicle and drove in to the back of the stationary third vehicle. The claimant contended that prior to the collision, Fermor and Jones had been engaged in inappropriate on-road behaviour which included “brake testing” one another in order to impede each other’s progress. As Fermor and the three other vehicles approached a roundabout approximately 4.1 km after the “brake testing” incident (which took approx. four minutes), he once again stopped in the road for no reason other than to inconvenience/impede Jones. The claimant’s case was that Fermor's actions caused the vehicles behind to perform sudden stops. Jones was able to stop behind Fermor without a collision, as was the driver of the third vehicle (not a party). The claimant was not speeding but did not have the benefit of ABS brakes, his wheels locked, and he collided with the third vehicle. Fermor and Jones were subsequently convicted of driving without due care and attention.

The claimant sustained a right sided pneumothorax, intraperitoneal bladder rupture, contusion of the right shoulder and caudal dislocation of the left nasal septum. He was diagnosed with PTSD, anxiety and depression.

Chaucer, added to the proceedings as second defendant, through Kennedys solicitors, denied liability in full but also pleaded that it was not the RTA insurer for Fermor’s vehicle at the time as he was driving from work. This activity, Chaucer claimed, was a breach of a use restriction in the policy of insurance, meaning Chaucer need not provide liability coverage. Chaucer therefore stood as an Article 75 insurer only. Fermor provided Kennedys with authority to run his Defence without prejudice to the indemnity point. Fermor/Chaucer alleged that Jones shared a meaningful degree of negligence in respect of the index accident as his manner of driving during the brake testing incident was intended to aggravate Fermor and gave rise to a foreseeable risk of injury during the brake testing but also a foreseeable risk that this would cause Fermor to react in a similar manner himself. Both Fermor and Chaucer pleaded that the fact that the reaction of Fermor occurred some time and distance later did not break the chain of causation between the two events. As Jones’ actions amounted to a breach of duty, he should share responsibility for the accident. There was no separate requirement of “joint enterprise”. A joint enterprise will be established when two parties set out to commit a crime “crime A”, however, a defendant can still be found liable for a different offence “crime B” committed by his associate, if he could have foreseen the possibility that his associate might act as he did in committing crime B.

Zurich, as contractual insurer for Jones, would have to satisfy the whole of any judgment if he had any liability to the claimant. Both Jones and Zurich were joined into the proceedings accordingly. They denied liability in full alternatively pleading that Fermor was solely liable as there had been a break in the chain of causation between the brake testing incident and the index collision separated by a distance of 4.1 Km (or 4 minutes), notwithstanding the guilty plea of both Fermor and Jones at their criminal prosecution for careless driving.

A motorist is under a duty of care not to expose other road users to a foreseeable risk of injury. A constituent of that duty is not to drive in such a way as to encourage other drivers to drive in a manner exposing other users to such a risk.

Jones and Zurich contended that the notion of encouragement to drive in a reckless/dangerous manner required a mutuality of intention i.e. the intention to assist or encourage the commission of a crime. Whether parties to such activities are engaged in a joint enterprise so as to give rise to joint liability is fact specific. Any liability based upon an actor’s provocation of a deliberate act must be limited to acts that are closely proximate to the provocation, that are a reasonably foreseeable consequence of the provocation, that are objectively proportionate to the provocation and that are carried out when the state of the actor’s mind can reasonably be expected to be altered/affected by the provocation. There was no mutuality of intention between Fermor and Jones. Fermor’s actions in stopping before the roundabout were not closely proximate, reasonably foreseeable or a proportionate response to the earlier “brake-testing” incident.

The claimant, Fermor and Jones all gave oral evidence at trial. The police statement taken from the driver of the third vehicle was read to the court.

After a 4 day trial, HHJ Freeland QC handed down judgment at Central London County Court on 5 December 2018. It was held:

  • Judgment for the claimant against the first defendant (Fermor). The first defendant’s stopping was a reckless act causing a foreseeable risk of danger to other road users.
  • The claim against the second defendant (Chaucer) be dismissed.
  • The claim against the third and fourth defendant be dismissed. The court rejects the first and second defendant’s argument that there was a joint enterprise, Jones did not incite Fermor. There was insufficient geographic and temporal relationship between Jones’ actions and the accident for causation to be attributed to him. There was no proximity between Jones' actions and Fermor’s reckless decision to stop.
  • The claimant’s damages be reduced by one third for contributory negligence
  • The first defendant to pay the claimant’s, second and third defendants’ costs of the action

The defence of Ex Turpi Causa (where a claimant cannot pursue a claim if it arises out of his own illegal act) was not relevant in the claim as it was not alleged that the claimant had been involved in the course of conduct between Fermor and Jones. However, as in cases involving a criminal joint enterprise between a claimant and defendant, the judge in the case looked at the intention of the parties. The Court accepted that Jones did not encourage Fermor to drive in a reckless manner.

Irwin Mitchell for the claimant – Counsel, Charles Sparling of Old Square Chambers

Kennedys for the first and second defendant’s – Counsel, Richard Viney of 12 KBW

Weightmans for the third and fourth defendant – Counsel, Charles Woodhouse of Old Square Chambers

For further information about Weightmans or to discuss any of the issues in this update, please contact Patricia Williams, Associate on 0207 822 1900 or email patricia.williams@weightmans.com or David Cottam, Partner on 0116 253 9747 or email david.cottam@weightmans.com

 

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