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Successful defence of high value road traffic claim in QOCS environment

Laws v Williams & Anor
High Court (QB)
18 July 2018

DWF has successfully acted for Aviva and their insured in a claim following a road traffic accident on a slip road where the claimant motorcyclist alleged the defendant had been negligent in slowing or coming to a stop.  Liability for the accident was denied notwithstanding that there was no case law dealing with a similar scenario. This is also a case where the QOCS regime applied.  Paul Greaves and Keighley Page explain how the case unfolded in Laws v Williams & Anor (2018).

Facts

The road traffic accident occurred at the slip road forming the entrance to the A12 close to Coleman's Bridge, in or near Witham, Essex on 23 October 2014.

The claimant was on a motorcycle heading towards the southbound carriageway of the A12 on the slip road.  Ahead of him was a car driven by the defendant with the same intention of joining the A12.  In front of the defendant was another car which successfully entered the main carriageway of the main road.  At the same time a lorry was approaching along the nearside lane of the A12. 

The defendant came to a halt on the slip road before she was able to enter the main road, as she did not think it was safe to proceed because of the oncoming traffic, and in particular, the lorry.  The claimant had looked to his right to see if it was safe for him to enter the main road, and unlike the defendant, he judged it was safe and assumed that she would proceed on to the A12. 

The claimant began to accelerate to bring his speed up to that of the traffic on the main road and turned back to look forwards.  He noticed for the first time that the car ahead of him, the defendant's car, had stopped.  He braked, but was unable to avoid hitting the rear offside corner of the car, and was propelled into the side of the lorry, sustaining serious and multiple orthopaedic injuries.

Pre-action, the defendant's insurer maintained a firm denial of liability but the claimant nonetheless issued court proceedings, and this was a case in which QOCS provisions were applicable. The case was subsequently listed for a trial on the preliminary issues of negligence and contributory negligence.

The claimant contended that the defendant should not have stopped or slowed to a virtual stop on the slip road for a number of reasons:

  • It was unnecessary to do so – she could have entered the A12 in front of the lorry driver;
  • She should not have stopped on what was a clearway, when it was safe to proceed;
  • The evidence showed that it was safe for her to have proceeded on to the A12 at the time.

Evidence

The parties obtained reports from accident reconstruction experts. While their opinion evidence was of limited assistance, they were able to assist greatly with the measurements and layout of the slip road and the point at which it tapers.  The defendant's expert, Tim Leek, also provided useful video footage of a driver's view of the road going along the carriageway and past the slip road, as well as footage for drivers travelling down the slip road. The video evidence emphasised the defendant's predicament when trying to join the dual carriageway.  Mr Leek also highlighted the relevant guidance about junctions on dual carriageways within the Driving Standards Agency Guide to Driving.

With regard to witness evidence, the judge was impressed by the witness evidence of the lorry driver.  He maintained that as he approached the slip road, he had turned off his cruise control and reduced his speed because he assumed the defendant would merge in front of him.  If she had done so, he would have had to touch his brakes to miss her safely, or change lanes, as he was travelling quite quickly.  He was clear that the claimant's motorcycle was behind his lorry when he heard the "thump" of the claimant colliding into his lorry.  

Findings

Sir Robert Francis QC sitting as a High Court judge, in finding that the defendant was not negligent in her actions leading up to the collision, came to the following succinct conclusion:

"… the actions of the defendant were those of the reasonably competent driver. She correctly judged that to have tried to enter the main road would have caused other traffic to alter its speed or direction. This would have been unsafe and contrary to good practice. A motorist with greater acceleration power available, such as a motorcyclist might have, might well have made a different decision and succeeded in entering the road without causing other traffic to brake. To the extent that the defendant's inability to do this was due to the speed at which she entered the straight section of the slip road, there is no obligation on a motorist to be going at any particular minimum speed round that bend. The dilemma is that the faster a driver enters the straight part of the slip road, the less time there is to make the judgment whether it is safe to proceed. There is also the consideration of having to keep a safe distance from any traffic ahead, a precaution which the claimant failed to take. Therefore even if the defendant was travelling slowly at the beginning of the straight section that was not unreasonable, and is not something which makes her later decision to slow down unreasonable. I consider her driving was in accordance with the good practice set out in the guidance to which I have been referred."

Comment

Liability

In the absence of previous authorities of cases involving accidents on a slip road, the judgment provides some useful guidance. It demonstrates the difficulties faced by a claimant following a vehicle in front trying to establish blame on the part of the driver of that preceding vehicle.

The judgment shows the benefit of insurers going to the expense of obtaining high quality evidence in support of its defence, such as here the expert evidence of the accident location which was important to the defence succeeding even though the cost of doing so was not recoverable. 

It also highlights the importance of completing liability investigations early so that the insurer is able to make an informed decision regarding liability pre-proceedings, which may be as it was here to defend the case at trial and plan the evidence accordingly, while accepting that the cost of doing so will at the end of the day remain irrecoverable. 

QOCS

The judgment also highlights the dilemma likely to continue to arise under the relatively new QOCS provisions.  This was a case where most liability investigations had been completed pre proceedings and liability was confidently denied.  Given the protection afforded to claimants under the QOCS regime, the claimant was able to bring his claim in the knowledge that he would only be liable for any of the defendant's costs in limited circumstances; none of which applied in the present case. With the claimant determined to proceed to trial, the operation of QOCS was inevitably on the insurer's mind, weighing up the economic implications with the strength of the case where costs were unlikely to be recovered.

This point was anticipated by claimants when QOCS was introduced sensing an opportunity. Claimant commentators were asking whether even a weak claim would have a nuisance value for settlement. In truth, the answer to that question depends on the response taken by insurers to weak claims in the same way as the insurer had to decide its position in this case. If from past experience claimant representatives see insurers settling that type of claim then it can be expected that more will be brought. If on the other hand insurers are willing to defend that sort of case to trial and liability findings are made such as in this case, then the opposite will apply.

The claimant in this case proceeded with claims that seemed to have limited prospects of success, perhaps in the hope that the litigation would pressure the defendant into making an offer.  If the defendant had done so, the claimant would not only be entitled to damages but also to some of his costs, which were likely to be significant.  Even if the defendant had made a low nuisance offer which had been rejected, the successful outcome of the trial (awarding the claimant no damages) would have resulted in the defendant recovering no costs in light of the provisions in CPR 44.14.  The insurer therefore took the decision in this case not to make any settlement offers and to run the case to trial, success at which avoided any payment for damages, claimant costs, CRU and NHS charges, albeit the insurers still had to stand their own costs of the defence. 

The claimant's case was not one that was susceptible for being struck out as an abuse of process, and the pleaded case disclosed what were likely to be regarded as 'reasonable grounds' for bringing the proceedings.  There was no hint of fundamental dishonesty. None of the QOCS exemptions were likely to apply. Where possible though, the tactic of running a defence to a weak claim can be supplemented by looking to take the case into an exemption from QOCS, by raising allegations of fundamental dishonesty, abuse of process or making applications for strike out more regularly so as to increase the prospects of recovering some costs.

At the end of the day it should be remembered that QOCS is favourable to insurers in overall terms, even though they may not be able to recover costs if the defence succeeds. This was the view of Lord Justice Jackson who in his preliminary report (Ch. 25) referred to figures provided by “Insurer X” which obtained cost orders in their favour in approximately 0.1% of its total cases over a one year period. Therefore Sir Rupert reasonably inferred, that the savings to be achieved in the remaining 99.9% of cases, by not paying additional liabilities, would outweigh the amount of costs recovered by X in the very few cases won or partially won.

While the percentage of successfully defended claims will vary as between insurers' books and the claims types involved, that anticipated saving should not distract insurers from defending weak claims in order to send an appropriate message to the claims industry.

Contact

For further information, please contact Paul Greaves on 020 7645 4128 or at paul.greaves@dwf.law or Keighley Page on 020 7645 4171 or at keighley.page@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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