Bonsor v Bio Collectors Ltd [2020] EWHC 669 (QB)
Summary
- No duty on an operator to fit a Fresnel lens.
- Issues with evidence – this could change in time with better argued evidence.
This is a personal injury Queen’s Bench case from England and Wales. Although it does not change the law, there is an interesting discussion on the duty of care owed by operators of HGVs in relation to the fitting of Fresnel lenses.
As far as I can tell, this is the first reported case addressing the issue of Fresnel lenses.
Facts
A class II Renault Premium was turning left off a road in the centre of London. The driver did not see the claimant who was crossing the road at the time, collided with her and caused significant injuries.
Issues at trial
Issues of primary liability of the defendant and contributory negligence of the claimant were explored. However, specifically for us in the transport industry, expert evidence and submissions were made in relation to establishing a specific duty of care owed by the defendant operator to the claimant to fit a Fresnel lens which could have prevented the accident.
Peter Marquand (sitting as Deputy High Court Judge) held that, as was accepted by both parties, there is no legislative requirement to fit such lenses. Additionally, at [95], the claimant had failed in discharging the burden of proving the existence of such a duty.
Why should operators take note?
This case merely confirms what we already know about Fresnel lenses – the Health and Safety Executive, Transport for London and FORS &c. recommend them but there is no statutory or regulatory requirement for them.
Why the court decided there was no duty to fit a Fresnel lens:
- substantial reliance on a report which did not deal with Renault Premium cabs;
- the claimant’s expert had never actually fitted a Fresnel lens;
- no detailed evidence on the efficacy of the lenses was presented;
- there was no evidence as to the cost of such a lens;
- neither expert knew much about where or how to fit a Fresnel lens in a lorry; and
- overall, the state of evidence on Fresnel lenses was ‘very unsatisfactory’.
This case, however, leaves open the possibility of an operator being fixed with such a duty of care if:
- the operator had foreseen the risk of an accident in the absence of a Fresnel lens;
- the court decides it would be fair, just and reasonable to impose such a duty;
- the fitting of the lens would have, on balance, prevented the accident or led to a less serious outcome; and
- the cost of doing so would not be disproportionate (the ‘magnitude of risk’).
Operators and their insurers should note that claimants will use this case as a template of how not to go about establishing a duty of care in relation to the fitting of Fresnel lenses – this will not be the last time this argument will be attempted.
I have in mind the many left-hookers operated by UK/Ire hauliers and blind-side lane-changing collisions but also the HGVs that operate mainly in city and town centres. There may not be a statutory requirement to fit them, but a court may decide that it would have been reasonable for you to fit one if it could have prevented an easily avoidable accident.
Transport Law NI 