AA v R Ltd (HGV accident involving 4 year old pedestrian)
If any dispute epitomizes the major benefits of referring cases to Independent Evaluation early on, it is the case of AA v R Ltd.
The claimant was only 4 years old at the date of accident. He was with his mother, who was pushing a buggy, and attempting to cross a road. They were standing on a central reservation when he unexpectedly dashed from behind the pushchair and into the path of the defendant’s passing HGV. The claimant was struck and sustained a life changing traumatic brain injury.
The primary core evidence was the Police report containing witness statements, a tachograph establishing the vehicle’s speed and CCTV footage graphically demonstrating the event. It was available within a matter of days of the accident and was certainly sufficient to enable a forensic analysis and determination of liability whether at an Independent Evaluation or split trial.
Despite having all the evidence necessary for a split trial on liability, the claimant’s lawyers made no move to issue and the defendant attempted to bolster their position with an Accident Reconstruction expert’s report. Both parties feared that the dispute was stagnating, until one-party floated the suggestion of an early referral for a non-binding Independent Evaluation.
After much discussion with IE, including the parties’ solicitors learning about the process directly from an Evaluator, there was agreement to attempt to resolve the dispute via this method. The Evaluator saw all the evidence then available and helped the parties agree ‘directions’ for evidence and progress towards an Evaluation.
In passing it is worth noting that the Evaluator gave clear guidance that there was no need for the claimant to retaliate with expert evidence of their own, which was accepted. The defendant was told and accepted that their Accident Reconstruction evidence only had value in so far as it provided a plan and timings that confirmed those available in the Police report. Save for that, the indication was given and accepted that the defendant’s expert evidence could and should be put aside for falling into that category of report that resort to advocacy.
Liability was firmly in dispute. Considerable time was spent with both parties crystallizing the issues and this helped both of them recognise the reality that it was an ‘all or nothing’ scenario, with no contributory negligence attaching to a child of such tender years.
The Evaluation hearing involved a careful analysis of the CCTV footage and plans with each of the parties separately. With a lead from the Evaluator, the parties actually reached agreement as to the mechanics of the accident, and had the clearest possible understanding of sight lines and any opportunities for the collision to have been avoided.
The Evaluator express his opinions as to the likely outcome if he were the trial judge and what he expected the likely outcome to be before the majority of judges. It was highly likely that there would be a liability finding in favour of the defendant: that this was one of those rare cases where there really was no negligence on the part of the driver, even after sympathy for the injured child had been accounted for. There were elements of litigation risk and these were also discussed.
The claimant’s side were naturally disappointed with such an evaluation, although readily acknowledging that they accepted it and were even grateful for the way in which it had been handled and explained to them. Given that the evaluation is ‘non-binding, the defendant was naturally concerned that the dispute could again stagnate and that there was still actually very nearly 20 years left for limitation even if the claimant had capacity.
It is really at this phase that the two separate elements of the IE process come together, namely evaluation and facilitation.
There was a cogent body of medical evidence, albeit only one recent medico-legal report dealing with injuries. Taken in conjunction with additional information provided by the family, the medical evidence was sufficient to enable the Evaluator to make a broad assessment of the full value of the claim.
As a result of this early evaluation and facilitation process the defendant offered a substantial lump sum payment, which the claimant accepted. Court approval was then obtained with the benefit of a detailed written evaluation of the merits of the case provided by the Evaluator.
The parties acknowledged that early IE saved an enormous amount of costs and it was those ‘savings’ that enabled the defendant’s ‘generous’ settlement. It also avoided the stress and heartache to the claimant’s family of the slow traditional litigation route, which might have blighted their lives for many years and may ultimately have been unsuccessful.
Whether for all issues or simply liability, this case exemplifies the growing trend of claimants and defendants making very early referral to IE because it is in everyone’s interests to do so.
Evaluator: Andrew Lewis