This article was co-authored by Eva Rurlander, Trainee Solicitor, London.
In a recent High Court trial in which Kennedys represented AXA XL Insurance Company with Counsel, Anna Symington of 12 Kings Bench Walk, the court took a common sense approach to liability in relation to a high speed, multi-vehicle road traffic accident.
The collision occurred at night and involved five vehicles on an unlit stretch of motorway.
There were three phases to the collision:
The claimants brought proceedings against the insurers of the Fiat (first defendant) and the Vauxhall (second defendant). The second claimant also brought proceedings against the first defendant’s insurer, the third defendant.
The claim came to trial before HHJ Jon Turner QC.
The court’s decision
The first defendant argued that the negligent driving of the first and second defendants each constituted a novus actus interveniens.
Counsel for the second defendant successfully argued that this was untenable in light of the first defendant’s criminal conviction for causing serious injury by dangerous driving and as such, argued that the court “must conclude” that the driver of the Fiat was liable for the claimants’ injuries.
During the course of the trial, the first defendant abandoned the novus actus argument, conceding liability but arguing contributory negligence on the part of the second and third defendants.
The first defendant maintained that the second defendant could have avoided a collision by taking one or more precautionary steps as far back as 200 metres away from the accident scene. These were: illuminating his main beam lights, slowing down, moving into the second lane and then the third lane and/or remaining in the first lane but at a slower speed.
HHJ Turner rejected these arguments finding that the actions taken by the second defendant were very much in the agony of the moment. HHJ Turner said that it was not appropriate for the court to engage in a fine-grained mathematical calculus, based on imperfect information, doubtful assumptions and with the benefit of hindsight, in order to assess liability in negligence.
Most road traffic accident cases rarely end up at trial but this case is unique given the multiplicity of parties, vehicles involved and the key road traffic consultants instructed by the various parties.
The lack of lay witness evidence meant that the experts were faced with an element of guesswork. Despite the very specific facts of this case, the outcome demonstrates the application of common sense. In doing so, the court considered Wright v Lodge  in attributing tortious liability solely to the first defendant, finding that the succeeding events of the other vehicles did not break the initial chain of causation stemming from the Fiat’s negligence.
Despite this being a QOCS case, not only was liability on the part of AXA XL Insurance Company avoided, but the insurer was also able to recover its costs from the losing co-defendant.