Palmer v Palmer
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 2006 |
| Neutral Citation | [2006] EWHC 1284 (QB) |
| Date | 23 February 2006 |
| Court | Queen's Bench Division |
| Docket Number | CLAIM NO: HQ02X04022 |
[2006] EWHC 1284 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CLAIM NO: HQ02X04022
(1) The Estate Of Kevin Palmer, Deceased
(2) The Motor Insurers' Bureau
(3) Pz Products Limited
Counsel: For the Caimant —William Edis
For the First and Second Defendants —John Norman
For the Third Defendant —Charles Cory-Wright
Introduction
This case arises out of a particularly tragic road traffic accident which took place as long ago as 6 January 1996 in which the Claimant, Kylie Palmer, then aged six, now aged 16, was being driven by her father as a front seat passenger in a Nissan Micra car.
Whilst driving, Mr Palmer suffered a fatal epileptic seizure at the wheel. In the ensuing crash, Kylie sustained severe injuries, the principal one being brain damage caused by the impact of her head close to the near-side end of the instrument panel of the car in which she was travelling.
Liability for the accident has been conceded by Mr Palmer's estate, the essential allegation having been that he was driving when he knew that he should not have been as he was a diagnosed epileptic who was both not taking his prescribed medication and still subject to fits.
Mr Palmer was insured under a policy taken out by his former wife, Tina Palmer. That policy has subsequently been avoided in the High Court on the basis of non disclosure by Mrs Palmer of her own epilepsy. As a result, when the Claimant came to sue, the Motor Insurers Bureau ("MIB") became involved and were joined into the action as Second Defendant.
At the time of the accident, the Claimant was wearing a seatbelt. That seatbelt had a device known as a Klunk Klip attached, the evidence suggesting that this device had been fitted to the car by its previous owner, a driving instructor from whom Mr Palmer purchased the car as a present for his wife. . This product was manufactured by the Third Defendant, PZ Products Limited, and is a device designed to be used in conjunction with inertia reel seatbelts to introduce slack into the seatbelts with a view to making them more comfortable. It is an "after market device" not provided as standard by car manufacturers.
The MIB is liable to pay damages which would have been payable by the insurers of Mr Palmer. However, the MIB has the right to require, as a condition of its meeting any liability, a person making a claim against the fund to "take all reasonable steps" to secure judgment against a third party. So far as such judgment is/are enforced against the third party, this reduces the MIB's liability. The MIB have compelled the Claimant to sue the Third Defendant.
Pursuant to the Order of Master Rose, dated 24 June 2005 (bundle 1/67), this trial is only concerned with issues of liability
The Accident
The circumstances of the accident are largely non controversial. Although neither the Claimant herself nor her father have been able to give an account of the accident, there were a number of eye witnesses whose accounts of what they saw appear in the form of witness statements in the trial bundle. In addition, a good deal of work has been undertaken by accident reconstruction experts.
As a result, it is common ground that at the time of the accident the Claimant was a front seat passenger in a two door blue Nissan Micra motor vehicle being driven by her father who suffered a fatal epileptic seizure attack and consequent loss of control of the car as a result of which it collided with the end of metal fencing mounted on a parapet where the elevated section of the A12 road begins at the Gallows Corner Flyover. Both the Claimant and her father were wearing seatbelts at the time and both front seatbelts had Klunk Klip devices fitted to them.
Earlier on in the journey, the Claimant's mother had been in the front passenger seat with the Claimant travelling in the rear. The Claimant's mother was dropped off outside St Margaret's Church on Barking Road in Canning Town. At this point the Claimant changed seats and spent the rest of the journey in the front passenger seat, her seatbelt having been fastened for her by her mother.
At the time of the impact the car was travelling at about 40 mph and prior to the head on collision with the fencing mounted on the parapet, the vehicle collided a number of times, at least two and possibly up to six times, with the off-side kerb of the central reservation before mounting the near-side kerb and colliding with the fencing mounted on the parapet as shown in the series of photographs taken by the Metropolitan Police Photographic Section. (3/971 and following in the bundle).
The Claimant struck the nearside end of the fascia panel with her face, sustaining a serious brain injury and as a result it is common ground that she cannot have had the seatbelt across her chest, even loosely, since, had that been the case, her head would not possibly have gone far enough forward to strike the fascia. Thus she had the upper part of her body effectively unrestrained with the seatbelt off the left shoulder at the moment of impact.
The Issues
Up until the first morning of the trial of liability issues there were essentially two distinct sets of issues:
(i) Whether the Klunk Klip device was a defective product within the meaning of that expression in the Consumer Protection Act 1987 ("the Act") and if so, whether it was the (or a) cause of the Claimant's injuries and/or whether there was negligence in its design, testing and marketing.
(ii) Whether Mrs Tina Palmer was herself at fault —the so called Hunt -v—Severs Issue. In broad terms, three faults were alleged against Mrs Palmer by the Second Defendant: that she let her daughter be driven by her husband when she knew, or ought to have known, that he was unfit to drive; that she placed the Claimant in the front seat rather than the rear seat; and that she failed to ensure that the seatbelt was tight.
In the event, on the first day of the trial I was informed by the parties that the so called Hunt -v—Severs Issue had been resolved and therefore the trial proceeded on the first set of issues alone, issues where the Claimant and First and Second Defendants made common cause against the Third Defendant.
Although there are two allegations of breach namely that the Klunk Klip was a defective product for the purposes of the Act and in negligence, it is common ground that the real question in this case is the former. It is hard to see how an allegation in negligence adds anything since if the product was defective under the Act then the Third Defendant is strictly liable and if it was not then it is hard to see how the Third Defendant can have been negligent and in breach of any common law duty to the Claimant. In the event that breach is established, there is then the question of whether the Klunk Klip was the, or a, cause of the Claimant's severe injuries.
The Law
There is no dispute between the parties as to the relevant law. The Act provides as follows:
2 (1) "Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom sub section (2) below applies shall be liable for the damage."
(2) This subsection applies to -
(a) The producer of the product;
(b) Any person who, by putting his name on the product or using a trademark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
(c) Any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another
3 (1) "Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes "safety", in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury."
3 (2)` "In determining for the purposes of sub section (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including -
(a) The manner in which, and purposes for which, the product has been marketed, its get up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
(b) What might reasonably be expected to be done with or in relation to the product; and
(c) The time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question"
The Evidence
The Court has had the benefit of hearing oral evidence from Mrs Palmer as to the circumstances in which the Claimant came to be a front seat passenger and as to the steps which she took to fasten the Claimant's seatbelt and from Kelly Yeates, an eye witness to the accident. In addition, the Court has had the benefit of reading a number of witness statements made by other eye witnesses to the accident. They are to be found in bundle 3 and include Abul Basar, Polly Basar, Susan Taylor, Roy Walker, Gregory March and Nigel Morris.
Mr Andrew Oxley, a Director of the Third Defendant company, gave evidence as to the background to the introduction of the Klunk Klip in the late 1970s and its marketing thereafter and the steps taken to ensure its safety. There are also witness statements from a Mr Brophy and Mr Mason who are involved in...
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