MAXWELL BURT
and
LONDON FIRE AND EMERGENCY PLANNING AUTHORITY
CASE REPORT
One November evening in 1999, Max Burt was driving home after work. He was a successful
young man, with an exciting life ahead of him. He drove across green traffic lights,
and was hit at speed by a fire appliance crossing a red light far too fast. He
was injured catastrophically. His claim came for trial in November 2002, before
His Honour Judge Pryor Q.C., sitting in London.
Despite the fact that the fire appliance had gone through red lights, and despite
the driver's conviction of careless driving, primary liability remained in issue.
Contributory negligence was alleged against the Claimant, and the apportionment
was hotly contested.
The Claimant was travelling along a one way street in London; there were four
lanes in his direction. He had no recollection of the accident, due to the severity
of his injuries, but it was possible to reconstruct what had happened. He was
in a new style, left hand drive, VW Beetle and, according to one witness, he was
trying to pick up speed wherever he could and was lane-swapping in order to do
so. He was driving along the fourth lane approaching the lights, that is the one
on the right. Traffic in the other three lanes had stopped, so that the Claimant's
view to his left may have been limited by other vehicles, such as black cabs and
white vans. Mr Burt did not notice or realise that traffic in the other three
lanes had stopped, and so he did not ask himself why it was stationary; he just
drove across the green light.
The police had carried out extensive tests using the fire engine, to see what
speed it must have been doing when it hit the Beetle amidships. Unfortunately,
that evidence was complicated by an apparently unreliable forensic scientist interpretation,
but the effect was to show that the fire appliance could not have been going as
slowly as alleged by the driver and his crewman.
Each side called a reconstruction expert. They differed significantly as to the
speed of the fire appliance as it entered the junction, the defence expert, Dr
Ninham putting the speed comparatively low. The judge said this about his evidence:
"Dr Ninham's failure to consider it (ie the overtravel of the fire appliance after
the impact) further, even as a check on other perhaps less reliable methods of
assessing speed, casts doubt on the rest of his evidence and on the conclusions
he expressed.".
The judge decided that the fire appliance was travelling at about 30 mph at the
time of the collision, possibly a little faster, unlikely to have been any slower,
having been doing more than 30 as it approached the junction. The driver's account
that he reduced his speed by 10 or 15 mph as he approached the junction "must
be an exaggeration". Neither the driver nor the crewman saw Mr Burt's car in the
fourth lane at any time before the collision, although they did see that the traffic
had stopped in the other three lanes. The driver made an unjustified assumption
that all the traffic he was likely to encounter was giving way to him, and he
did not give himself any opportunity to deal with the problem which might arise
if his assumption was wrong.
The judge said that Mr Burt was driving in a pushy manner, and saw an opportunity
in the fourth lane to get past the traffic in front of him; he entered the junction
at about 30 mph without pausing to consider why the traffic on his left had stopped.
He may, possibly, have heard a fire engine's siren, but if so it is possible that
he attributed it to a fire engine which had already passed, and he did not pause
to consider whether there might be another one in the near vicinity. He should
have noticed that the other three lanes had stopped for no obvious reason, and
should have taken enough care to find out what the reason might be before overtaking
the stationary cars. If he had done so, he would have become aware of the fire
appliance.
The judge was invited to consider various cases, the most recent being Purdue
v Devon Fire and Rescue Service (the Court of Appeal judgment was delivered
after submissions in our case had finished, but before judgment was delivered
in our case; counsel agreed that we should put our submissions on that case into
writing, submit them to each other, and then submit them to the judge. We felt
that it would be inappropriate that he should reach his decision in ignorance
of a recent, relevant Court of Appeal decision).
The judge apportioned liability equally, which I think is wrong. In my opinion,
the blame to be attached to the drivers differs significantly. The driver of the
fire appliance knew that he was entering a junction against a red light, and that
therefore the lights for the traffic going across the junction were green. He
drove over the red light at 30 mph, or more, having slowed insufficiently or not
at all. He made an obviously dangerous assumption, namely that the empty fourth
lane would not contain a car crossing the junction. Those actions were deliberate,
and contrary to the guidelines issued by his employers. On the other hand, Mr
Burt failed momentarily to realise that the traffic on his left had stopped, and
so failed to slow down and find out why; effectively one moment's lack of caution.
Unfortunately, appeals are always risky, especially to claimants who have the
spectre of losing their finding of primary liability. Mr Burt therefore decided
not to appeal.
Most personal injury cases never come to trial, and so defective experts are never
found out. If my experience is representative, which it may well not be because
I am so narrowly specialised (claimants' brain and spine only), it suggests that
there are many poor quality "experts" writing reports for claimants and defendants
which may appear respectable, and which may put the opponents off, but which are
in reality misleading.
In my opinion, lawyers for both claimants and defendants should still be careful
of the apparently respectable expert on the other side. It is so easy to be daunted
or dissuaded by firm opinions given by such experts, but part of the expertise
of personal injury litigation is to know the experts, and to perceive when they
are not giving respectable opinions. Personal injury litigators now commonly keep
databases of experts, gathering together their own personal experience, and this
may be symptomatic of the continuing worry that nothing has really changed since
1999.
BILL BRAITHWAITE Q.C., who specialises in catastrophic brain and spine
injury, was instructed by Sally Moore of Leigh Day & Co.
24 February 2003
1139 words
****