FATAL ACCIDENT DAMAGES AND THE CHOUZA CASE (3): PAIN,SUFFERING AND SHOCK PRIOR TO DEATH

This is the third post in a  detailed examination of the judgment in  Chouza v Martins & Ors [2021] EWHC 1669 (QB).  Here we look at the judgment in relation to the claim for pain and suffering prior to death.   The judge found that an award could be made when the deceased person died almost instantaneously as a result of injuries suffered in a road traffic collision.  Damages, however, were extremely limited. In this case to £500 plus interest.

DAY LONG COURSE ON FATAL ACCIDENTS

Along with solicitor and Irwin Mitchell partner,  Hilary Wetherell I am presenting a day long course on fatal accidents on the 12th November 2021. Booking details are available here. 

THE CASE

The Claimant was seeking damages following the death of her husband in a road traffic accident. One of the issues the court had to assess was whether the estate was entitled to damages for the pain and suffering that the deceased person had suffered prior to death.

THE JUDGMENT ON THIS ISSUE

Issue (1): Should any award (and if so in what sum) be made for the deceased’s pain suffering and loss of amenity?

1. 1. There is, before the court, an agreed report from Mr Christopher Phillips, a Consultant in Emergency Medicine. This report contains a description of the accident derived from the statement of the driver of the minibus, a Mr Rivas:

“4.1 The index road traffic accident occurred on the morning of 15 February 2015 when a group of 9 workers were travelling in a minibus from their hotel to their place of work. … They had left the hotel between 6:20 and 6:25am. Mr Rodriguez was sitting on the front seat at the right of the vehicle where the driver would sit in a right-hand drive vehicle.

4.2 Mr Rivas states that he was travelling at 60 to 65 kph around a left curve in the road, when he became aware of a vehicle approaching from the opposite direction. Mr Rivas states that at this point in the road, there were double solid white lines indicating that vehicles should not cross these lines. Mr Rivas states that Mr Rodriguez shouted something like “be careful, he is coming towards us”. Mr Rivas realised that the vehicle approaching from the opposite direction was on the wrong side of the road, coming directly towards them: he states that he realised that it was a large lorry; he estimates it was around 40 metres in front of the minibus when he first saw it.

4.3 Mr Rivas said he steered towards the left in an attempt to avoid the collision, but thought that he did not have time to brake.

4.4 The lorry collided with the minibus: at the point of impact, Mr Rivas states that the lorry was entirely in his lane. The impact caused severe damage to the minibus; the windscreen smashed and the airbags deployed.

4.5 Mr Rivas said that he and the middle front seat passenger climbed out through the broken front windscreen. Mr Rivas states “I saw that Albino was very bad and was trapped in the vehicle. I saw the others in the back getting out.” He later states “I soon realised that Albino was dead.”

In the summary and opinion of the report, Mr Phillips states:

“6.3 … It is conceivable that despite his serious injuries, Mr Rodriguez may have remained conscious for a short period following the head injury but if that was the case, I would have expected the minibus driver to have noticed that there were signs of life: he states that he and the other front seat passenger climbed out through the front windscreen and although not stated, he implies that Mr Rodriguez made no effort to extricate himself from the minibus. On the information provided, and in the absence of a post-mortem report, I would therefore conclude that it is more likely than not that Mr Rodrigues was killed instantly at the point of impact.

…

7.2 It is my opinion that Mr Rodriguez would have been aware that a severe collision was inevitable for a period of between one and five seconds before the impact. I believe that this is more likely than not that Mr Rodriguez would have experienced intense fear during this short period prior to the impact.

7.3 I believe that it is more likely than not that Mr Rodrigues died instantly at the point of impact. On the assumption that Mr Rodrigues died instantly, I do not believe that he would have been conscious of any pain for more than a split second.”

1. 1. For the claimant, Mr Swoboda submits that the deceased would have been aware of the approaching lorry and the impending impact and that this must have given rise to mental anguish which is compensable. He also suggests that the deceased must have had a period of physical suffering given the violence of the collision. He contends for an award of £2,500.

1. 1. For the defendants, Mr James submits that intense fear does not amount to pain or suffering or loss of amenity and therefore no award falls to be made under this head of claim. He submits that fear on its own does not translate into actionable damage and draws an analogy with a pedestrian who is nearly run down at a pedestrian crossing, who has no claim for personal injury.

Discussion

1. In my judgment, there is a distinction to be drawn between mere fear or anguish on its own and fear or anguish in association with physical injury. Although the deceased’s death followed very quickly after the physical injury, nevertheless physical injury was sustained, and the expression “pain, suffering and loss of amenity” should be taken to include the fear and mental anguish which precedes physical injury. I therefore agree with Mr Swoboda that compensable damage was sustained in this case. However, I consider that the sum claimed of £2,500 to be much too high for a maximum of 5 seconds of mental anguish and fear followed by almost instantaneous death. In my judgment, the appropriate sum to be awarded is £500. Interest on the sum from the date of service of the proceedings (25 May 2018) to the date of this judgment (25 May 2021), a period of 1096 days, amounts to £30 at 2% per annum.