Brushett v Hazeldean – The Facts

A pedestrian crosses the road whilst looking at her mobile phone.  She is seemingly unaware of an approaching cyclist, who had cycled through a green light.  There is a collision, and both reportedly suffer injuries.  So why did the Judge order that the cyclist must pay the pedestrian damages and legal costs, yet the cyclist gets nothing?

Reading much of the recent press coverage of this case, one can be forgiven for thinking that this was an unusual, perhaps even unfair result.  But was there more to it?

I was the barrister instructed to represent Gemma Brushett, the injured pedestrian who sued the cyclist for damages.  In my practice I act for both claimants (those who have been injured and seek to be compensated) and defendants in a range of different types of personal injury cases.  I have acted on behalf of many more cyclists than I have pedestrians in my career so far (although I tend to do more medical negligence work than road traffic cases), and am firmly of the view that the use of green modes of transport such as cycling should be encouraged.

I accept that I am not an independent observer of the case.  But I was one of only a handful of people who were present for the 2 days of the trial, and can add some important detail to that put out in the newspapers.

THE UNDISPUTED FACTS

The accident happened shortly after 5pm on 20^thJuly 2015.  There were many pedestrians trying to make their way home from work.

The Claimant was attempting to cross King William Street towards Cannon Street.  The Defendant was cycling northbound over London Bridge and intended to cycle up King William Street.

This would have been approximately the Defendant’s view as he cycled through the light that he says was green (although there would have been a greater number of pedestrians than in this photograph).  The crossing is in the top left of the shot where the red double decker bus is.  The traffic lights are perhaps 25 metres away from the collision point at the crossing.

This is approximately the view that the Defendant would have had from his position on the road perhaps 5 metres away from the crossing.  The Claimant was crossing from right to left on the Defendant’s view.

THE EVIDENCE

The Claimant did not give oral evidence at the trial of liability.  She had been knocked unconscious by the impact, and suffered concussion with post-traumatic amnesia such that she had no recollection of the accident itself.  Her witness statement described that this was her usual walk from the office to the station to go home.

The police attended the scene after the accident and spoke to 5 witnesses, including the Defendant.  It is important to recognise that the police did not prosecute the Defendant or the Claimant.  In his statement to the police, the Defendant stated that he:

 “…..can see people crossing at the junction of King William Street with Cannon Street so I have sounded my airhorn on my bike, which caused people to part and leave a gap in the middle of the road.  I continued up towards King William Street, but due to the people in the middle island and still crossing I was positioned on the right hand side of my lane, close to a yellow bollard on the middle island.  I believe I may have been travelling at 10-15mph.  As I was approaching this island where most people had stopped, I saw a blond female who was in the middle of the road crossing onto the pavement in the direction of Cannon Street.  She turned to look at me and instead of continuing forward in the direction she was walking she stopped and stepped back into the gap I was travelling into.  I shouted out to her “No” as I was only 2-3 metres away from her.  I put on my brakes but could not avoid colliding with her…..”

The police spoke to 2 witnesses who were standing in the central island at the time of the accident.  They both said that the Claimant walked out from the central island, and that she stepped into the path of the cyclist.  One of these witnesses said that the Claimant wasn’t looking for oncoming traffic. They both blamed the Claimant for the accident.

Another witness was on the left hand pavement.  They said that they heard the “loud horn”and the Defendant shout something “to which the female stepped out”.  There was no comment from this witness as to who they thought was to blame.

The final witness was Mr H.  He had been cycling over London Bridge and had waited at the lights before it turned to green.  He told the police that he was overtaken by the Defendant after the traffic lights. He said that the Defendant sounded his airhorn at that point and“cycled towards a large number of pedestrians who were still crossing the road……..The cyclist did not slow down and I heard him shout something towards the pedestrians.  I then saw the cyclist’s bike strike a lady on the left side knocking her to the ground…….”

Mr H considered that the Defendant was riding too fast towards the pedestrians.  He felt that the Defendant was to blame.

None of the statements given to the police on the day of the accident, including the Defendant’s, mention that the Claimant was using her mobile phone.

The police investigator who attended the scene and spoke to all of the witnesses concluded that both the Claimant and the Defendant were to blame.

PREPARATION FOR TRIAL

The Defendant was unrepresented when he drafted his own Defence.  It was thorough and addressed each aspect of the Claimant’s claim.  It did not expressly plead contributory negligence.

The Defendant instructed solicitors who came on the record in October 2018.  In their Directions Questionnaire filed that month, they sought a direction for an amended Defence to be filed, “with a counterclaim if advised to do so”.

No application for permission to serve an amended defence was made, and no counterclaim was ever brought.

In advance of trial the Defendant filed and served a hearsay notice confirming that he intended to rely on the 4 other witness statements given to the police as ‘evidence of truth of the matters stated’.  This included the police statement of Mr H.  However, by this time the Claimant had already obtained a witness statement from Mr H, who would be called by the Claimant to give live evidence at trial.

The Claimant made an application for summary judgment on the basis that the Defendant’s hearsay notice adopted Mr H’s statement to the police as being the truth.

No attempts were made to bring any of the 3 other witnesses to Court. It remains unclear whether they had a clear and unobstructed view of events, and whether their focus was on the Claimant or the Defendant.  More details of their statements to the police are set out from paragraph 22 of my note of the judgment.

THE TRIAL

On the morning of the trial, the Claimant’s application for summary judgment was heard.  It was refused.

The Defendant made an application to plead contributory negligence in the alternative.  This was allowed.

The Claimant relied on Mr H as her only witness on the issue of liability. Mr H attended trial and was cross examined by the Defendant’s barrister.

Mr H’s evidence included a voice memo that he had recorded on his mobile phone minutes after the accident in order to provide a more detailed account than that recorded by the police.  His witness statement expanded upon his police statement.  He described in Court that there was a ‘throng’ of pedestrians 5 or 6 deep crossing the road, and estimated that there were 50 people in this group.  He described that he slowed his bicycle because he felt that it was unsafe to proceed with people still crossing.

Mr H said that he was overtaken by the Defendant, who was travelling at around 20mph and had sounded his airhorn.  Mr H considered that the Defendant accelerated as he approached the crossing.  He saw the Defendant collide with the Claimant who was crossing the road.  He remained of the view that the Defendant was to blame.

The Defendant gave evidence at trial.  No other witnesses gave live evidence in support of his case.  The Defendant’s evidence at trial included that:

• He was knocked unconscious as a result of the collision, but no evidence had been obtained to ascertain whether this had caused any ill-effect on his memory.
• He was approximately 20 metres away from the crossing when he saw a group of pedestrians crossing the road. He said that the group of pedestrians included the Claimant.
• It appeared to him that the pedestrians were unaware that there was oncoming traffic.He was aware that there were no pedestrian red man/green man lights at the crossing.
• ‘Many’ of the pedestrians heeded the sounding of his 115db airhorn, but the Claimant and others continued to cross the road.
• He accelerated up to 10-15mph after he sounded the airhorn, when people were still in the road.
• The Claimant was near to the left hand side of the crossing (as he was looking at it) when she looked up from the mobile phone that she had been reading, panicked, and ran or stuttered back across the road in the direction of the central island.
• He called out loudly, applied his brakes, and attempted to swerve to the right, but was unable to go further as he would have hit the pedestrians waiting on the island.

OTHER FACTS

In submissions, reference was made to speed conversion tables.  10mph = 4.5 metres per second, 15mph = 6.7 metres per second, and 20mph = 9 metres per second.

This was relevant because if the Defendant was travelling at around 20mph as Mr H contended, he would have travelled the approximate 20 metres distance to the Claimant in about 2.2 seconds.  If he was travelling at an average of 12.5mph, he would have travelled the approximate 20 metres distance in about 3.6 seconds.

The Highway Code recommends that cyclists use a bell.  There is no reference to airhorns (they are not expressly prohibited).

JUDGMENT

My note of the judgment on liability is here.  It is important to understand that this was an extempore judgment given at the end of a long and stressful day in Court.  District Judge Mauger is an experienced, fair and excellent judge.  She has been hearing these types of cases for around 10 years, first as a Deputy District Judge, and then as a full time District Judge since 2014.

My view is that had there been time to prepare a full written judgment, there may well have been a different focus on certain parts of the evidence, but that the ultimate result would have been the same.

My typed note of the judgment will not be a 100% accurate transcription, but it should be pretty close to it.

The trial of the quantum of damages was heard the following week.  It was found that the Claimant suffered a head injury involving concussion, dental injuries including a change to her bite, and facial scarring.  The Claimant was awarded £4,000 in general damages for pain, suffering and loss of amenity, and £161.79 in special damages (reduced from a total award of £8,323.57 for contributory negligence).

The summary assessment of costs is to be dealt with at a further hearing. The Claimant had been awarded more in damages than 2 previous Part 36 offers she had made in attempts to settle her claim without going to trial.

MY VIEW

There was more to this decision than the many of the newspaper articles conveyed.

Based on the judge’s finding that the Claimant was using her mobile phone, it was absolutely correct that she was found to have significantly contributed to the accident.  However, the Defendant himself had conceded that he had accelerated towards a crossing which wasn’t clear of people.

If any wider good has come from this case it is that the publicity may encourage cyclists to take out insurance to protect themselves in the event that their riding causes someone to suffer injury.

 

 

New Part 36 Rules – What’s Changed?

Part 36 of the Civil Procedure Rules has been amended once more, with all offers made on or after 6 April 2015 subject to the new regime.  But what do the new rules entail?

1.   Time Limited Offers

CPR 36.9(4)(b) now permits an offer to be “automatically withdrawn in accordance with its terms” after the end of the relevant specified period of acceptance.

This marks a departure from the previous rule 36(3)(6) which provided that any withdrawal of an offer must be communicated after the end of the specified period of acceptance.

Offers with terms now expressed as ‘this offer shall remain open for acceptance for a period of 21 days, after which time it is automatically withdrawn’ are now valid in their entirety.  No further steps need be taken to formally withdraw the offer after the end of the relevant period.

Note however that the new rule 36.9(4)(b) does not provide that all offers are automatically withdrawn after the end of the specified period.  It merely provides that stating that an offer is subject to automatic withdrawal is now permitted.

2.  Improved Offers

CPR 36.9(5) provides that where the offeror changes the terms of a Part 36 offer to make it more advantageous to the opposing party, such an offer will be regarded as a new offer rather than a withdrawal or amendment of the original offer.

A series of distinct improved offers remain regarded as multiple offers, any one of which may be accepted, and attract costs consequences, if not withdrawn. The former rule 36.7(2) provided that a change in terms of a specific Part 36 offer was an amendment to one offer.

The new rule 36.9(5) provides that communication of improved terms of a Part 36 offer in fact creates two offers that remain open until withdrawal or acceptance.

3.  Late Acceptance

CPR 36.14(5) provides that where a Part 36 offer is accepted outside of the specified period, the court must make an order that the accepting party pays the costs from the end of the specified period up to acceptance, unless it would be unjust to do so.

The previous rules simply provided that the usual order would be made ‘unless the court ordered otherwise’, leading to some to consider that this provided for a broad discretion.

4.  Split Trials

CPR 36.16 now permits a Judge hearing the trial of a preliminary issue to be told of the existence of any Part 36 offer, but not necessarily its terms.

Under the previous regime, a Judge had to decide whether to make a costs order in respect of the trial of a preliminary issue in ignorance of the existence of any Part 36 offer that had been made to compromise that issue, if that offer also contained proposals to compromise the entire claim.

The new rule permits a Judge to be told of the existence of all offers when deciding costs of trials of a preliminary issue.  A Judge may be told of the terms of the offer where that offer is confined to the compromise of the preliminary issue.  The rule will apply to all split trials taking place on or after 6 April 2015, even if the offer was made prior to this date.

5.  Genuine Attempts to Settle

Rule 36.17 replaces the previous rule 36.14 on costs consequences following judgment.  In considering whether it would be unjust to make the usual costs award, 36.17(5)(e) “whether the offer was a genuine attempt to settle the proceedings” is now a factor.

This new criterion appears to be designed to disincentivise very high claimant offers; an attempt to compromise the claim is unlikely to be regarded as genuine if it does not account for some litigation risk[1], unless the evidence is very strong in all heads of claim.

6.  Failing to File Costs Budgets

It remains the case under rule 3.14 that where a costs budget is not filed in time, a litigant may be treated as having filed a budget limited to court fees only.

Rule 36.23 provides an incentive for an offeree to settle where the offeror has been made subject to an order limiting their costs to court fees only.  Where the defaulting offeror has made a Part 36 offer that is accepted late, the offeror shall be entitled to recover 50% of any costs incurred after the expiry of the relevant period.

7.  Appeals and Counterclaims

CPR 36.2(3) has brought clarity to the position faced by counterclaimants and claimants in additional claims.  The new rule provides that counterclaimants and claimants in additional claims may receive the benefit of the more favourable costs consequences of claimant Part 36 offers, even when they are not the named claimant in the primary action.

Whilst the previous rules provided that Part 36 offers could be made in appeal proceedings, there is now more detail as to how the rule is to be applied.  In particular a claimant/defendant in first instance Part 36 offers shall equate to appellant/respondent respectively.  It is anticipated that where there are cross-appeals, it will be possible for a respondent to make a claimant Part 36 offer in the same way as the new rule operates for counterclaims.

[1]  AB v CD [2011] EWHC 602 (Ch)