EWJ June 2024 web - Journal - Page 64
Owens v Lewis: Injured Passenger
Found 30% Contributorily Negligent
James Knight from our Complex Injury Team had an noteworthy trial outcome in the Wrexham
DR in March in which a passenger on a quad bike was found 30% to blame for his injuries.
The case revolved around a personal injury claim by
Mr Owens (the claimant) who had been one of three
passengers on a single-person quad bike driven by Mr
Lewis, the defendant and our client's insured.
Liability/contributory negligence
The defendant admitted he was negligent in carrying
the claimant as a passenger on a quad bike which was
not designed to carry any. He denied he was negligent as to the manner in which or the speed at which
he drove the bike. Further, the defendant said that the
claimant had been negligent in agreeing to be carried
on the bike in the first place, positioning himself in
such a way as to make it very likely he would come off,
and by not wearing a helmet the defendant said that
this merited a deduction for contributory negligence
of 65%.
Accident
The claimant was about 16½ at the time of the
accident. The defendant was only 15. They, together
with their two friends, had agreed to go rabbiting that
evening with their terrier dogs. When the claimant arrived at the farm, he was met by the defendant and
two others. The defendant had a single-person quad
bike with him and they agreed (albeit reluctantly, according to the claimant) to drive to their destination.
The claimant said he expected the defendant to drive
across fields to get there, but the defendant took them
on to the main road. The claimant and another were
sitting behind the driver on the rear of the quad bike,
each holding a terrier.
The claimant admitted he was at fault in agreeing to
be carried as a passenger and had exacerbated this by
not wearing a helmet, but said this should only mean
a deduction of 20%.
The judge, HHJ Keyser, made findings of fact
which went to his eventual decision on contributory
negligence:
l It was the defendant's idea to use the quad bike.
As the bike was being driven along the road at
between 20 and 30 mph the claimant, perhaps unsurprisingly, lost his grip, fell off and was injured. The
claimant suffered a fractured skull, subdural
haematoma, post-traumatic amnesia lasting just over
a week, loss of taste and smell and potential balance
problems. The claimant had no memory of the
accident.
l The defendant was neither licensed nor insured.
l No helmets were available and there was no
discussion about wearing them.
l The claimant did not express any reluctance to ride
on the quad bike or any wish to walk.
l The claimant knew that the bike was not designed
Causation
Both sides called neurosurgery experts. Unsurprisingly, attention focussed on what the difference the
wearing of a suitable helmet would have made to the
claimant's head injuries. The experts were agreed that
the evidence showed the claimant had suffered a fractured skull with a TBI which was moderate to severe.
This had been caused by both linear and rotational
forces. A motorcycle helmet would have been suitable
protection and, had the claimant been wearing one,
the injuries apart from the TBI would have been
avoided. The effect of the TBI itself would have been
mitigated by wearing a helmet but the experts disagreed as to how much.
for carrying passengers.
l The defendant was driving at a speed of about 25
mph to 30 mph when the accident occurred which
was excessive. Even his lower estimate of 20 mph was
too fast.
l The claimant's inadequate handhold with nothing
else to secure him was inherently precarious.
Decision
The judge considered the culpability of the defendant
in the light of the admission of primary liability. The
defendant's carrying of passengers was particularly
negligent in the circumstances and the defendant's
driving at what the judge had found was an excessive
speed was a further instance of his negligence. Even
judging the defendant's actions by what was expected
of the "ordinarily reasonable prudent" 15 year-old boy,
what he did was clearly negligent.
The claimant's expert thought that the way that helmets are tested did not take into account the dynamic
forces involved in an accident like the claimant's. The
defendant's expert did not agree. His view was that
evidence suggested that there were real-world benefits to wearing a helmet and, had the claimant done so,
the initial TBI would have been reduced from severe
to moderate with no lasting organic brain injury.
EXPERT WITNESS JOURNAL
The judge noted the claimant's admission that he had
been contributory negligence and characterised the
defendant's arguments as aspects of one complaint
rather than three separate issues, i.e. it was unsafe to
take a ride on the quad bike at all, but especially when
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JUNE 2024