B v J Sainsbury Plc (multi-vehicle motorway accident; catastrophic injury)

The claimant, a young woman, was caught up in the middle of a major motorway pile up involving 28 cars and 6 HGVs, in which 7 people lost their lives and over 50 sustained serious injuries. Whether the cause of this incident was thick fog or smoke from a nearby fireworks display, or a combination of both was in issue, but everyone involved suddenly and unexpectedly encountered almost zero visibility; many likened this to a sheet or paint being applied to their windows.

The claimant entered the area of reduced visibility and drove into the back of a HGV, whose driver had stopped without hitting anyone. Her car was partially lodged under its tail. There was no direct evidence as to the speed at which the claimant had been travelling or how far under the HGV her car had advanced. The protective under-run bar was designed to resist an impact of a family saloon travelling at up to 35 mph. Above that speed, the car would break through the barrier and enter the cavity below the HGV’s trailer, with consequential damage, particularly to the roof of the car.

A short time after that first impact, a second HGV drove into the back of the claimant’s car, which was protruding from the first HGV, and pushed it completely under the first HGV. The claimant was found unconscious with severe, life-changing injuries to the head and face. The roof of the car had been crushed and forced backwards.

The claimant was in hospital for many months and made a slow recovery. She has continuing permanent disabilities resulting from the head injury and facial scarring. However, her remarkable determination was such that she has been able to return to part-time work with reduced career prospects.

The Claimant’s lawyers initially sued 8 potential defendants but eventually pursued only the driver of the second HGV. The case was put on the basis that it was obviously negligent to drive into the back of another vehicle. Liability was denied on the basis, first, that the driver had not been negligent; the visibility loss was to sudden and so total that, even taking all reasonable care, he could not have avoided a collision. Plainly there was some merit in that argument. The police, following a thorough investigation, did not criticise any of the drivers, let alone prosecute them. Also, the claimant herself had driven into the back of an HGV. The defendant’s second argument was that the claimant’s injuries had probably been caused in the first collision. If, as they alleged, she had been driving at 60 mph, her car would have gone a long way under the first HGV and the damage to the roof (and her head) would have been caused then. The defendant (even if negligent) would not be liable for that damage.

Both parties were at risk of a bad outcome if the case went to trial. The detailed evidence was not conclusive on either liability or causation. The parties failed to reach a settlement and eventually agreed to try Independent Evaluation. Although there were some disputes on the quantum of damage, it was accepted that the claimant had made remarkable efforts at rehabilitation and the main issues were negligence and causation.

On liability, most of the witnesses who had given police statements spoke of impossible driving conditions with vehicles crashing into each other all over the place. However, the occupants of one car, which had been overtaking in the outside lane, proved of significance. The driver of that car began to slow down when it entered the fog but the occupants noticed an HGV (which they claimed was the defendant) in the middle lane travelling faster than they were, in effect, overtaking them on their near side. The inference to be drawn was that the defendant had not attempted to slow down when he had the opportunity to do so. It was not disputed that it would be negligent not to reduce speed on entering the fog. Although the evidence of those witnesses might be successfully challenged in cross-examination at trial, the evaluator thought that the claimant would probably succeed on liability. There was, however, a real risk that she would fail.

On causation, the evidence was conflicting. Both parties had instructed accident reconstruction experts but their opinions differed as to what could be inferred as to how far the claimant’s car had gone underneath the HGV in the first collision. It is impossible to summarise the evidence briefly. Suffice it to say that the evaluator took the view that, on this issue, the claimant was marginally more likely to win than the defendant. The overall risks were evaluated at about 60% in the claimant’s favour and the claim settled in line with this assessment. The defendant also paid the claimant’s costs (which were agreed at the evaluation).

This case was highly suitable for Independent Evaluation: both parties were at risk of a bad outcome at trial in addition to the costs and delay of getting to trial. There was a real risk that the claimant might lose altogether, which would have been disastrous for her. The award of 60% of full damages was a much safer outcome for her, to say nothing of avoiding the stress of a trial and the advantage of an earlier conclusion. Judgment would otherwise probably not have been given for at least a year, with the possibility of an appeal thereafter. The defendant also faced the risk of a worse outcome than 60% of full verdict damages. But in addition, the defendant achieved a considerable saving in costs. The trial had been estimated to last 5 days and the additional costs would have been substantial.