Pearson v Anwar
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] EWCA Civ 1011 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 2015 |
| Docket Number | B3/2014/3685 |
[2015] EWCA Civ 1011
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER DISTRICT REGISTRY
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE PLATTS)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Kitchin
B3/2014/3685
Mr C Melton QC and Mr D Knifton (instructed by Slater & Gordon) appeared on behalf of the Claimant
The Defendant was not present and was not represented
This is an application by the Claimant for permission to appeal against the decision of His Honour Judge Platts sitting as a judge of the High Court in Manchester on 14 October 2014 and his consequential order by which he held that the damages recoverable by the Claimant should be reduced by 25 per cent as a result of his contributory negligence.
Permission to appeal was refused on the papers by Dame Janet Smith on 15 January 2015. The Claimant has requested that this decision be reconsidered at an oral hearing, which has come on before me today. At this hearing, the Claimant has been represented by Mr Christopher Melton QC and Mr David Knifton, as he was before the judge.
For the purposes of this application, the background may be summarised as follows. In January 2010, the Claimant, who was 23 years old, was a front seat passenger in the Defendant's taxi. After less than a minute, the Defendant attempted to overtake parked vehicles on the nearside, but lost control of the taxi, skidded on ice and collided with an oncoming vehicle. The combined speed of the two vehicles on impact was between 50 and 70 miles per hour. The Claimant was texting a friend and was not wearing a seat belt, but concerned about the Defendant's speed, was at the moment of impact endeavouring to put his seat belt on.
The drivers of both vehicles were injured, but the Claimant's injuries were by far the most serious of all. He suffered a fracture dislocation of the cervical spine, which has rendered him tetraplegic. The experts agreed that the probable cause of the injury was that as a result of the sudden deceleration of the taxi, he was thrown forward and to the left so that the back of his head struck the pillar to the nearside of the windscreen. It was the impact of the Claimant's head against that pillar which caused a hyperflexion of the neck and this in turn caused the fracture dislocation of the spine and permanent damage to his spinal cord.
The result has, in the judge's words, been catastrophic. The Claimant has no sensation or voluntary movement in his arms, chest, abdomen, legs, bladder or bowels. He is wheelchair dependent and will require 24-hour care and assistance for the remainder of his life.
The judge also found that had the Claimant been wearing a seat belt, there would still have been some forward flexion and then rebound extension of his neck as a result of the vehicle coming to a sudden halt and that he would probably have suffered a modest whiplash injury for about 3 to 6 months.
The judge directed himself first of all by reference to the guidance given by this court in Froom v Butcher [1976] 1 QB 286. There Lord Denning, the Master of the Rolls, explained that sometimes the evidence will show that the failure made no difference. The damage would have been the same even if a seat belt had been worn. In such a case, the damages should not be reduced at all. This was Lord Denning's first category.
At other times, the evidence will show that the failure made all the difference and that the damage would have been prevented altogether if a seat belt had been worn. In such cases, Lord Denning suggested that the damages should be reduced by 25 per cent. This was his second category.
Finally, there will be some cases where the evidence will show that the failure made a considerable difference. Some...
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