Hammond vs Clarkson – driverless cars to boost the UK economy but at what cost to insurers?22 November 2017
Philip Hammond has just unveiled plans in the Budget to invest millions of pounds into driverless cars and technology, with the aim to have fully driverless cars on our roads by 2021. These cars will be electric, and he has promised £400m to boost the UK electric car driving structure, £100m plug in car growth and £40m for research and development into electric and autonomous cars.
Manufacturers such as Land Rover Jaguar and Audi have already started rolling out their version of driverless cars. Claims that road traffic accidents caused by human error will reduce considerably or even be eliminated completely. This in turn will boost the UK economy and that we will lead the new industrial revolution.
But at what cost? Can technology be so advanced and super secure that it will never fail? What if the software fails? What about bugs getting into the system or cyber security? Or if there is an inherent fault within the vehicle. Can we trust ourselves completely to let a vehicle take complete charge? If there is an accident (and accidents have happened) issues such as could a human driver or a comparable automated system perform better will surely be raised.
Jeremy Clarkson has scoffed Hammond’s plans, announcing that he was almost killed twice whilst testing a driverless car. And that we are “… miles away from it.” Clarkson also challenges Audi, “You drive one of your driverless cars over Death Road in Bolivia and I’ll buy one…. Sit there with your hands folded and let it drive you up there, then squeeze past a lorry with half a tyre hanging over a 1,000ft drop whilst the car drives itself. Fine. I’ll buy into it.” Clarkson has a point. What if a child runs out in front of the car and the only alternative is to swerve into another car on the neighbouring lane? How will the car decide whether to hit the child or the other vehicle?
But if Hammond wins, who pays when things go wrong? The government has published the Automated and Electric Cars Bill and the general position is that the insurer pays, but they will have the right of recovery from software and product manufacturers. Liability can also be excluded or limited if the insured driver has made or allowed unauthorised modifications to the vehicle or failed to install safety-critical software updates. Insurers will also not be held liable if the vehicle user was negligent in allowing the vehicle to drive itself when it was not safe to do so. It is safe to say that we can expect litigation over the interpretations of “safety critical” and “negligent”.
There will be no doubt be a shift from driver liability to product/software liability. Changes to the Road Traffic Act and the Highway Code will need to be made. With three potential defendants for each vehicle, there will surely be a rise in litigation for the most serious of injuries. These are the issues facing the insurers impacting heavily upon their risk management and reserves.
Plexus Law will be hosting a driverless car seminar in the Spring. Watch this space.
If you would like to find out more about this topic, please speak to your contacts at Plexus:
Jo Pizzala, Partner
T: 0345 245 4783 | M: 07957 726 576 | E: firstname.lastname@example.org
Kathryn Oldfield, Partner
T: 0344 245 4462 | M: 07500 781 177 | Kathryn.email@example.com
Petty Abrams, Solicitor
Solicitor T: 0344 245 4462 | M: 07500 781 177 | E: firstname.lastname@example.org
Whilst we take care to ensure that the material in this article is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the article does not give specific legal advice, should not be relied on as so doing, is not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this article.
Whole claim dismissed for Fundamental Dishonesty on an interlocutory basis pursuant to s57 of the Criminal Courts and Justice Act 20158 November 2017
Mr Paul Johnson v (1) Mr Joseph Qainoo (2) CIS General Insurance Limited
An accident took place on 1st September 2012 when the 1st defendant opened a car door and knocked the claimant from his bicycle. The claimant brought a claim for personal injury and associated losses including a claim for loss of earnings pleaded in the sum of £85,000.00.
By his Particulars of Claim, the claimant said that his injuries affected his work as an IT engineer and he disclosed a contract claiming he had not been able to fulfil the same as a result of the accident.
Plexus Law Limited (‘Plexus’), on behalf of both defendants contended in the defence that the claim was “fundamentally dishonest” and submitted that the contract disclosed in support of the £85,000 claim was a fabrication; it had been crudely adapted from a contract between two Chinese companies that had been found on the internet following a simple Google search.
In addition, the contract disclosed had a number of features which caused Plexus to question its authenticity.
The claimant provided a copy of a further contract, this time between his company and a company called IWebistics, dated 1 September 2012 (the date of the accident). This contract was also purported to be for £85,000 but its authenticity was also called into question; it was signed before IWebistics was incorporated.
When faced with this information in the Defence, the claimant discontinued his claim for loss of earnings but an application was made to Court for a finding that the entire matter, including the injury claim, be dismissed pursuant to s57 of the Criminal Justice and Courts Act 2015.
The claimant was ordered to provide a number of documents to prove his assertions that he was a qualified I.T engineer. Only limited documentation was provided and Plexus were able to disprove much of the content (such as the claimant’s attendance at the University of York).
The matter came before District Judge Bishop sitting at the Croydon County Court on 29 and 30 June 2017.
Claimant’s counsel at the hearing submitted that the claimant would suffer “substantial injustice” if his entire claim was dismissed; the Judge rejected this submission.
Having heard evidence from the claimant over a full day the Judge concluded that the claimant was ‘overwhelmingly dishonest’ and, in dismissing the case in full, found that he had lied to the Court in written evidence, committed perjury and had fabricated documents to advance a fraudulent claim.
The case was duly dismissed with costs being awarded to the defendants on an indemnity basis.
Section 57 of the Criminal Justice and Courts Act 2015, which came into force on the 13 April 2015, imposes a duty on the court to dismiss a claimant’s case (save where the claimant is likely to suffer substantial injustice) where it is satisfied that a claimant has been fundamentally dishonest.
The dismissal of Mr Johnson’s ‘overwhelmingly dishonest’ case, on an interlocutory basis, is welcome news to insurers and defendant practitioners.
Prior to the Act insurers had to weigh up whether to make an offer for what were the ‘genuine’ elements of a claim or proceed to Trial and risk exposure to a potential adverse cost order. This case has demonstrated that the courts are willing to make a finding of “fundamental dishonesty” without the expense of a final hearing through prudent case management and where there is strong evidence of dishonesty in respect of some parts of the claim.
If you would like to find out more about this case, please speak to your contact at Plexus:
Kevin Perkins, Associate Partner
T: 0344 984 4851 | M: 07890 590 187 | E: email@example.com
Plexus Law | Dean Clough | G1 G Mill | Halifax, HX3 5AX
Whilst we take care to ensure that the material in this case alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the case alert does not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this case alert.
Cedik v European Metal Recycling – When is a collateral lie not collateral?17 October 2017
Manchester County Court 6th Oct 2017 (Judgement delivered 10th Oct 2017)
The Claimant brought a claim for personal injury arising from an accident at work on 26/04/12 when the crane he was working in began to shake violently, causing the Claimant to bang his head on the window and injuring his left shoulder. Liability was conceded pre-litigation.
It was accepted that the Claimant suffered an injury to his left shoulder caused by the index accident. However, the medical position was complicated. The Claimant was predisposed to venous thoracic outlet syndrome due to his muscular physique (having been an ice hockey player). The Claimant underwent a rib resection surgery in November 2014.
However, following the surgery the Claimant did not recover as expected and continued to complain of pain and restriction such that he could not work and was more or less housebound.
Unsurprisingly the Claimant had been placed under periods of surveillance. These, whilst showing the Claimant carrying moderately heavy items and moving fluidly, did not capture the Claimant undertaking heavy manual activity or working.
On 23/04/15 the Claimant issued a claim on the basis that he had not worked since the accident and was unlikely to be able to return to heavy manual work in the future.
The Defendants medical expert was of the view that the Claimant’s ongoing symptoms could only be medically explained by residual stenosis of the left subclavian vein. The opinion of an Interventional Radiologist was obtained which concluded there was no such residual stenosis.
On 31/01/17 the Claimant signed a schedule of loss asserting that his symptoms would not allow him to engage in full-time employment involving heavy manual work and claiming future loss of earnings in the sum of £140,000. Further, in his witness statement, also signed 31/01/17 he stated that he had “no employment prospects at the present time”.
It was therefore a surprise to the Defendant when two weeks later it received a request for a reference from a Manchester Airport where the Claimant had successfully applied for a role as a baggage handler.
After further specific disclosure it transpired that the application to the airport had been made only 6 days after he signed his witness statement and schedule of loss. Within the application and CV the Claimant claimed he had been working for a company called ‘Frostbite Refrigeration’ since leaving the Defendant’s employ.
The Claimant sought to explain this by admitting that he had lied on the application to Manchester Airport and that he had not, in fact, worked for Frostbite Refrigeration. The Claimant said he was desperate for work and needed to show a 5 year working history in order to satisfy rigorous security requirements for employees. Frostbite Refrigeration confirmed that the Claimant had not worked for them, although it was noted that the owner of that business was a close friend of the Claimant.
The Claimant had named his fiancé on the application as a reference, stating she was a business friend, rather than divulging the true nature of their relationship.
Ultimately the Claimant did not proceed with the role at Manchester Airport. According to him, he felt he would not be able to manage the physical demands of the role.
The Claimant’s position was that, whilst the mistruths on his CV and application form were dishonest, this dishonesty was collateral to his claim. He maintained he was suffering the symptoms complained of and that he remained unable to undertake heavy manual employment.
The Defendant accepted accident related symptoms up to March 2015 (following the rib resection surgery and recovery) but asserted at trial that the claim should be dismissed pursuant to section 57 of the Courts and Criminal Justice Act 2015 as the Claimant had been fundamentally dishonest.
The judge found that the Claimant’s accident related symptoms resolved within a short period of the rib resection surgery, and at least by the end of February 2015.
Regarding the baggage handler application, the judge found that the Claimant must have known, prior to applying, that the role involved heavy manual labour and that he would not have applied if he did not consider himself fit to do the job. Further, in respect of the Claimant not taking up the role, the judge noted that the Claimant had gone to the trouble of ‘creating’ a CV and attending the interview; he had intended to get the job and had the Defendant not intervened he would have started the job.
Regarding the admitted dishonesty within the Manchester Airport application, she found such activity was criminal and was astonished by the Claimant’s behaviour in times of heightened security. Moreover, the attitudes of the Claimant and his fiancé, that their actions were reasonable in order to secure employment was disconcerting; both the Claimant and his fiancé were found to exhibit serious and persistent dishonesty.
The judge did not accept that the Claimant had been suffering restriction since 2015 or that he had believed himself to be suffering such restriction. The claim for loss of earnings was therefore fabricated and this amounted to fundamental dishonesty which went directly to the heart of the claim. On the point of substantial injustice, which the court was obliged to consider the judge acknowledged that the consequences of her finding were significant but that was the purpose of the legislation.
The claim was dismissed in its entirety and the amount which would have been awarded but for dismissal was recorded as £46,160.07. As the Claimant had already received £18,000 in interim payments, these were ordered to be repaid with 21 days. The Claimant was ordered to pay the Defendant’s costs on an indemnity basis, to be assessed if not agreed.
The case was handled by Andrew Steel, Partner, Plexus Law, Manchester in collaboration with the Plexus Law fraud team. Counsel for the Defendant was Matthew Mawdsley of St Johns Buildings.
For further information on this case please contact:
Andrew Steel, Partner
T: 0344 245 1065 | E: firstname.lastname@example.org
Sick Too Quick – Holiday Sickness Successful Defence3 October 2017
It’s good news for insurers and the travel industry that slowly but surely sickness claims are reaching the courts and those without merit are being dismissed.
One recent fast track matter handled by Plexus Law on behalf of a tour operator was dismissed at trial following scrutiny over the medical expert’s written report.
The Claimant alleged food poisoning following a 14 night all-inclusive holiday to Tunisia in October 2013. This claim was not typical of the questionable sickness claims presented to the industry over the last 12-18 months. In this matter, the Claimant had clearly suffered with a gastric illness. Whilst no official report of the sickness was made in resort, the Claimant changed hotels on approximately the 4th day of the holiday. Rightly or wrongly, clearly the Claimant was dissatisfied with the original accommodation.
Within days of the Claimant’s return to the UK a detailed email of complaint was sent to the tour operator. The Claimant also posted a very unfavourable review on Trip Advisor the same day. The Claimant alleged food poisoning and described gastric symptoms which justified 2 days in bed at the start of the holiday. The Claimant cited the first lunch of fish and rice taken at the first hotel as the cause. Symptoms began approximately 5 hours after eating the lunch on the first day of the holiday.
The Claimant’s initial email went on to explain how, following the change of accommodation, confidence in Tunisian hotel hygiene standards resulted in taxis being taken to the local town in order to avoid getting food poisoning for a second time. This inferred that the short bout of sickness had resolved.
At the time of the holiday, the Claimant was on various medications for, amongst other things, asthma, a rheumatological condition and weight loss. The side effects of the medications could cause gastric symptoms. The medications and pre-existing issues meant the Claimant was a fairly regular visitor to the GP. The Claimant had visited the GP 3 weeks before the holiday with diarrhoea. The Claimant visited the GP 5 days after returning from Tunisia. She had a flu jab and there was no mention of the sickness recently suffered on holiday.
Proceedings were issued against the tour operator in October 2016. In the pleadings the sickness had increased to a fairly lengthy 6 weeks. The Claimant’s holiday was ruined as a result of ‘barely leaving the bed for the rest of the holiday’ (the witness statement of the Claimant’s travelling companion).
The Claimant’s medical expert opined that the sickness was an infective gastroenteritis acquired by ingesting food and drink at the first hotel. Part 35 questions were put to the expert and asked the expert to consider the possibility that the sickness was idiopathic traveller’s diarrhoea. The expert maintained his opinion and elaborated that the cause was most probably a strain of E-Coli. The medical expert did not consider the incubation periods required for the various possible pathogens; E-Coli in particular has a typical incubation period of 3-4 days. The expert did not consider the breakfast consumed at home or the inflight meal earlier that same day. The expert’s report was therefore unable to persuade the judge that the first meal eaten at the first hotel was the most probable cause of the symptoms which began just 5 hours later. Put simply, the Claimant was sick too quick. The judge accepted that the Claimant was reasonable in believing that this meal was the cause and further accepted that the apparent exaggeration as to the length of the sickness and effect on the holiday was simply a cloudy memory due to the passage of time.
The abundance of hygiene documentation, lack of sickness outbreak at the hotel and willingness of the head chef to give evidence by way of video link from Tunisia is likely to have assisted the judge in reaching this conclusion.
The claim was dismissed at the trial on 21 September 2017 and costs were awarded to the Defendant. As qualified one-way costs shifting applies, the Defendant is however unable to enforce the costs order.
For further information on this case please contact:
Claire Scargill, Solicitor
T: 0344 245 5330 | E: email@example.com
A Cocktail of Toxic Ingredients – Interpretation of CPR 44.15 (c)/exception to QUOCS3 October 2017
Derby County Court has recently provided a useful judgment regarding the interpretation of CPR 44.15 (c). The rule provides an exception to qualified one-way costs shifting (QUOCS) following a strike out of a Claimant’s statement of case as a result of the Claimant’s conduct obstructing the just disposal of the proceedings.
It was previously unclear what type of conduct and obstruction would implement the exception. It was open to interpretation and likely to be fact specific to a particular strike out.
This matter arises from a foreign holiday taken by the Claimant and two other holidaymakers on 20 August 2012 for 7 nights. The Claimant made a number of bookings over the telephone with the Defendant which included return flights from East Midlands airport to Corfu, 7 night’s all-inclusive accommodation at the Corfu Sea Gardens and airport transfers.
During the stay at the Corfu Sea Gardens the Claimant alleges that she became ill as a result of poor hygiene standards at the hotel. The Claimant issued proceedings against the Defendant pursuant to the Package Travel, Package Holiday and Package Tours Regulations 1992 (PTR) alleging that the Defendant supplied a package holiday and was therefore vicariously liable, pursuant to the PTR, for the acts and/or omissions of the suppliers who performed the obligations under the travel contract. The proceedings were issued on 6 September 2015 and served upon the Defendant’s solicitors, on 12 December 2015. It appeared that the matter was issued outside of limitation however, the papers were brought to the court on time. Perhaps an early indication as to how this matter was to be run; by a Claimant who eventually exhausted all bites of the cherry.
The Defendant’s defence was twofold. Firstly, the Defendant denied that a package holiday was supplied and therefore denied that they were vicariously liable for the acts and/or omissions of the hotel. Secondly, in the event that the Defendant should fail on the first point, the Defendant denied that the hotel’s hygiene standards were poor. The defence was filed and served in February 2016. Directions were set and the trial was listed for 20 September 2016.
Standard disclosure by list was due by 4pm on 25 May 2016. The Defendant received the Claimant’s unsigned list late on 31 May 2016 followed by a signed list on 6 June 2016. On 2 June 2016 the Defendant requested to inspect 2 items from the list (various holiday photographs and GP Records). The Claimant was obliged to comply with this request within 7 days; by 9 June 2016.
The parties were due to exchange lay witness evidence by 4pm on 6 July 2016. By 18 July 2016, the Defendant was still not in receipt of the requested documents or the Claimant’s witness statements and so put the Claimant on notice that an application for strike out would be made within 7 days.
The application was filed and the application hearing was listed for 16 August 2016. In response to the application the Claimant made an application for relief from sanction, thereby accepting the breaches. The court made an Unless Order which provided the Claimant with a deadline of 4pm on 19 August 2016 to comply with the directions Order; namely that the requested documents (photographs and GP records) be disclosed, witness statements served, and also for the updated schedule of special damages now due to also be served. Failure to comply would result in the matter being struck out.
On 18 August 2016 the Claimant disclosed, via email, GP records and 2 witness statements. No photographs or updated schedule of special damages was received and the matter duly stood as struck out. The court made an Order confirming the strike out on 5 September 2016. The court also awarded the Defendant’s costs of the action to be assessed.
The Claimant applied to set aside the Order on the basis that there was no updated schedule of special damages to serve and the requested photographs were emailed to the Defendant in June 2016. The Claimant submitted that the Unless Order had therefore not been breached. The Defendant denied ever receiving the email, in June 2016 or at all, and assumes the Claimant must have received a failure notification.
Why the Claimant had not previously alerted either the Defendant or the court to this June 2016 email, for example at the hearing on 16 August 2016 or in response to the Unless Order, remains to be seen. The production of the photographs went to the very heart of the strike out and the opposing solicitor’s had emailed on several occasions on the subject and reference to the photographs being emailed in June 2016 was never made. On the contrary, the Claimant seemed to previously accept that there had been a breach in failing to disclose the photographs and a September email from the Claimant’s solicitor to the Defendant’s solicitor confirmed they were taking their client’s instructions on the photographs. These positions make little sense if the Claimant believed they had in fact already disclosed the photographs two/three months previously.
At a November 2016 hearing of the Claimant’s application to set aside the Order, the judge was critical of the Claimant only recently referring to the June 2016 email. Serving an additional witness statement, to flesh out the ‘good reason’ limb of the Denton test, on the Defendant’s counsel on the morning of the hearing was also unlikely to gain the judge’s favour. The judge looked at the matter in the round and concluded that the case consisted of ‘a cocktail of toxic ingredients’. The judge dismissed the Claimant’s application and the matter remained struck out.
The judge was not minded to make a finding on CPR 44.15 (c) on whether QUOCS was excluded and preferred to review case law and guidance in this area.
The Claimant submitted that a strike out following a breach of an Order did not satisfy 44.15 (c) and the requirement for conduct to wholly obstruct the just disposal of the proceedings. The parties had to wait until September 2017 for the issue to be heard.
The judge in September 2017 agreed that several breaches of an Order and a breach of an Unless Order was sufficient to satisfy CPR 44.15 (c) and the Defendant was awarded costs of £13,399.50 in an enforceable costs Order. It is worth noting that a strike out following just one single breach of an Order may not be sufficient to exclude QUOCS and for CPR 44.15 (c) to come into play.
For further information on this case please contact:
Claire Scargill, Solicitor
T: 0344 245 5330 | E: firstname.lastname@example.org
Summary Judgment: One of the most powerful tools in a Defendant’s armoury31 July 2017
Plexus was recently instructed to act for a company which had proceedings issued against it. The Claimants (“C”) contended that the Second Defendant (“D2”) had failed to unblock some drains on the neighbouring land, with the consequence that the C’s land flooded. D2 was a contractor engaged from time to time by D1.
The claim against D2 was only framed in negligence. Despite a robust Defence and part 18 questions, little if anything was provided by way of clarification as to the basis for the claim or the basis on which D2 was said to owe a duty of care to C.
From the outset and as pleaded in the Defence D2 contended that they did not have a liability in negligence to C. It was submitted that on any analysis no such duty of care was owed, and therefore the claim must fail and should be struck out before further unnecessary costs were incurred.
Plexus took the bold step and on agreement of the client to apply for Summary Judgment.
Summary Judgment is one of the highest civil thresholds. CPR 24.2 provides as follows:
“The Court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that Defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial”.
Plexus argued that the Claimants’ claim had no prospects of success. The Claimants argued that negligence was not proven against the Second Defendant.
The House of Lords in Caparo Industries plc v Dickman  2 A.C. 605, held that in order to establish a duty of care the Claimants needed to satisfy the court of 3 things:
- Damage was foreseeable
- That C and D2 had a relationship of sufficient proximity or neighbourhood; and
- That it is fair and reasonable, taking into account policy concerns, that a duty of care should be recognised in all the circumstances of the case
Consideration of proximity requires isolation of factors that indicate that D’s act or omission closely and directly affected C and that the parties are, in a sense, neighbours. The taking on or assuming responsibility for a task can give rise to a duty of care to third parties in certain circumstances.
It is a trite observation to make that in order for any such claim to stand any real chance of success it must, as a first pre-requisite, be shown that D2 owed a duty of care to C.
Plexus argued that D2 was not C’s physical neighbour nor was there sufficient proximity and for the purposes of the Caparo v Dickman analysis:
- There was no contractual relationship
- D2 did not own the land on which works were to be carried out
- D2 had not assumed any responsibility to C
- D2 had assumed no responsibility to undertake any works. All that had happened was that works had been recommended and priced and authorisation from D1 to carry them out was outstanding
- D2, even if it thought that works ought to have been done, had no right or necessary access to go onto the land or power to do anything
- There were no policy considerations which would allow a finding that it would be just and reasonable to impose a duty of care on D2 in the circumstances of this case. To do so would open floodgates to claims against innocent contractors who had assumed no responsibility and were powerless to act
Finding of the Court
The Court found that there was no real prospect of success in the claim against D2 and summary judgment was entered in favour of D2 with costs in full.
Plexus Law recovered their costs from the Claimants and it was therefore at no cost to D2. The Claimant paid a high price for litigating a claim without properly analysing the merits of the claim beforehand, and in the face of warnings from Plexus Law.
If you would like further information of this case please speak to your contact at Plexus:
Edward Musa, Solicitor
Property Risks & Coverage
T: 0344 334 1057
City Tower | Piccadilly Plaza | Manchester | M1 4BT