Author Note
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Mr. Jaffna,
Senior Solicitor,
Dear Mr. Jaffna,
Sub: Injury damages/compensation payable to my client, Rudd for accident and injuries:
This memo deals with the assessment of liability and quantitative claims in terms of compensation payable to the Rudds (since the claimant and witness, Peter Rudd, is still a minor). It is also necessary to consider that the insurers of the other party, viz. Ms.Whalley, are reluctant to make any kind of out- of -court settlement or agree for any other kind of settlement. Thus, it has becomes necessary to take this issue for proceedings in the County Court of this district. On their part, the defendants, Ms. Eleanor Whalley or her constituted insurers, are not willing to accept any recompense settlement and remain firm in their innocence and lack of negligence on the part of Ms.Whalley. According to the applicant, while he was driving his bicycle from Skipton Drive, a minor road, into Bedford Road, this car, allegedly driven by Ms.Whalley, in an attempt to overtake his vehicle, hit against it, causing him serious injuries. It is necessary to go into broader details of this case, in an attempt to present the case in its correct perspective and to ascertain the extent of damages that could be claimed by the aggrieved party from perpetrator. Besides, the identification of compensation and damages for willful wrong doing also need to be considered. The first aspect that needs to be considered is one of Degree of Care and this would be considered from both sides, i.e. the motorist and also the degree of care that Peter Rudd should have exercised while driving his bicycle in a public thoroughfare.
Degree of Care exercised by the defendant:
“The motorist must exercise the care of an ordinarily prudent person to protect children from injury. The level of care depends on the age and nature of the child who is injured. The known characteristics of children, therefore, must be considered when examining whether a motorist exercised the appropriate care towards a child.” (Parental Responsibility for Child’s Accidents, 2010, para.4).
In this case, it is seen that the defendant, Ms Eleanor Whalley, had not maintained a high standard and duty of care while negotiating the road. She had attempted to overtake the cyclist and drove at high speed, much above the speed limit of 30 mph, which is designated to this stretch of road by the local police. According to Police Statement, the accident occurred due to this vehicle traveling at high speed and collided with the bicycle driven by my client, Rudd. From all the evidences and the police report, it is transpires that the precipitating cause of the accident has been the high speed in which the defendant’s vehicle was traveling. The normally allowable speed is of 30 mph but this vehicle was traveling at 35-40mph at the time of accident.
Degree of care exercised by the applicant and client, Peter Rudd:
It has been observed that the client had been driving his cycle carefully. He was wearing reflective bands in his ankles and both his front and rear lights were on. According to him, he has also provided appropriate indications to the vehicles behind that he was turning right by waving his right hand in customary traffic fashion. Apparently, the accident was caused when upon turning to proceed towards the centre of the road; the rushing vehicle could not control its speed and direction, and hit his bicycle.
Police reactions and enforcement in this case:
According to the account in the Police Records on 2.11.2010, in the Fordham Police Station (PS), the case was booked under offence of ‘driving without due care and attention,” contrary to RTA S3. Thus, as per the existing laws under Road Traffic Act she has been “convicted” and fined “£250 and 6 Penalty Points endorsed,” (Thames Valley Police, n.d).
Deposition of Witness – John Arthur Diver, Police Constable:
Apparently, this witness arrived at the scene after the accident took place and thus his deposition of how the accident actually happened cannot be considered with any remarkable degree of accuracy or belief. Moreover, according to the witnesses’ conversation with the defendant, Ms. Eleanor Whalley, she told him that she was driving down the road towards Fordiham when the cycle came straight across her and she hit him. Thus, she has tried to save herself by implying that the cycle crossed the path of the ongoing car. But this cannot be considered true on two counts.
- According to the witness the direction taken by the car was towards Town Center
- The damages sustained by the vehicle were to its frame and the rear wheel area.
This could only have happened if the cycle was hit from the back that is in the event of overtaking it from behind. In the event it was a head on clash, both the front and back of cycle would have been smashed up. Under such circumstances, it is unlikely that the judge would believe the plea of the defendant, but it would be more in line to believe the statement of the applicant, Rudd, which is more in line with the kind of outcome of the accident – wreckage of the bicycle and also damages sustained to the front side of the vehicle of the defendant.
Computation of damages:
The consequential damages for this accident could be seen as both of General Category and a Special Damages arising out of the mental trauma and physical injuries sustained by my client, Rudd. First the General Category of damages could be seen as follows:
Pain and Sufferings during and after the accident due to over speeding and rash driving:
“Colles fracture” of the wrist – Actual hospital bills paid for treatment of fracture and plaster costs for 6 weeks – (Colles’ fracture, n.d).
Fractured nose- Actual hospital bills paid for treatment of fracture and plaster costs for 2 weeks –
Concussion with mild post traumatic amnesia – actual hospital bills
Facial lacerations and chest bruising – actual hospital bills paid for treatment and medication, etc.
Future loss of study capability: As a result of broken wrist, future work on it would be painful and there would be loss of movement and mobility. This could affect writing speeds and consequently impact upon his studies. A medical examination of the losses needs to be made.
Future medical expenses: The wrist breakage is of major concern and would definitely require future treatment.
Handicap sustained by client, Rudd: His writs would not be in original shape, despite surgery and fracture repair. He needs to exercise more care in its use.
Considering all the above, a consolidated General Damages of £ 3500 for present and future losses through lowered degree of studies, etc is being made. This is exclusive of the actual medical bills that need to be paid. Second kind of damages are the Losses due to medical expenses present and future, which is estimated at £1000 and also damage to property which is as follows : Cycle costs (Raleigh Racer ) £210
Cycle caps £65
Waterproof trousers £45
Trainers £50
Jeans £70
Total 440 + Bus charges + 12 = 452.
Therefore, the special damages and charges woud be £452
Added to this would be the interest that would be computed, for both special damages and charges. The main aspect that would weigh in this case would be in terms of a kind of permanent injury to his left wrist as a result of this accident. Being a left handed (the wrist broken in of the left hand) this would definitely affect his studies and writing skills on a long term basis. He would have pain and suffering on account of this for the rest of his working life and possibly this would impair his career prospects too since, as a result of this accident, he has lower grades than actually he would have had if the accident had not occurred. The learned court needs to take into account this fact when settling his compensation in terms of his future studies and career prospects. Besides, there are also other bodily injuries on his face and chest, which need to be treated and cured.
Perhaps one of the main aspects is that he is not at fault since he has working brakes on his bike and also he had provided the signal (visibility was low due to bad weather). The Judge would reject the contention of the defendant that he had come on the way of the ongoing car. This is because the damage to the bicycle was only on the rear tire and this could not have happened in a front on collusion. The collusion, which the defendant says would have smashed both the tires and their guards – even the entire cycle would have been smashed up and the degree of injuries to my client, Rudd would have been more.
Quantum of compensation:
Thus, my client wished to provide a claim as follows:
- Pain and suffering, loss of future study capacity due to injury to left wrist £3500
- Total loss due to medical expenses including fracture treatments £1000
- Special damages due to loss of property £452
Sub Total £4952
Add miscellaneous costs 48
Total £5000
Less: Contributory negligence 1000
Final total £ 4000
“ In addition you should be compensated for the pain and suffering that you have gone through as a result of the accident and the consequent injury. Finally you can also claim for any future losses you may suffer, of example an inability to work, loss of promotion prospects, and perhaps an inability to take part in certain sports or hobbies.” (Claim Accident Compensation, 2010).
Contributory negligence:
“In the past, if two people were in an accident, the injured person could only recover for his/her injuries and damages if they did not contribute to the accident in any way. This approach was based on a policy originally established in England that stated a person who negligently causes harm to another cannot be held liable if that injured individual contributed to his own suffering and injury, even if it was only a very slight factor.” (Contributory Negligence vs. Comparative Negligence, n.d).
In this case, it is seen that the contributory negligence on the part of Rudd was to come to the middle of the road in order to allow the speeding vehicle (35-40 mphs) to overtake him. While rash and speedy driving has been the main cause of the accident, instead of coming to the side, my client Rudd went to the middle of the load, thus acting as a contributory negligence element and rashness on the part of the applicant.
Thus, the quantum of compensation may be reduced by £1000 to set off the contributory negligence aspect.
It is now necessary to take up some verdicted English case laws on accidents and compensation to reinforce the quantum of compensation.
The first case is that of “Huston v. East Berkshire AHA (1987) 2 All ER 909” the issue arouse of major disability to the boy due to apparent negligence of the medical staff. (Table of Cases, 1952).
The judge found that even if the diagnosis had been made properly, there was still a 75% risk of the plaintiff’s disability developing, but that the medical staff’s breach of duty had turned that risk into inevitability, thereby denying the plaintiff a 25% chance of a good recovery. Damages included an amount of £11,500 representing 25% of the full value of the damages awardable for the plaintiff’s disability.
In this case, there is no medical negligence as such, but the defendant’s disinterest in a negotiated settlement has given cause for litigation. In the Greg v Scott case, [2005] UKHL 2 on appeal from: [2002] EWCA Civ 1471 “The defendant Dr Scott negligently diagnosed as innocuous a lump under the left arm of the claimant Mr. Malcolm Gregg when in fact it was cancerous (non-Hodgkin’s lymphoma). This led to nine months’ delay in Mr. Gregg receiving treatment. During this period his condition deteriorated by the disease spreading elsewhere. The deterioration in Mr. Gregg’s condition reduced his prospects of disease-free survival for ten years from 42%, when he first consulted Dr Scott, to 25% at the date of the trial…This conclusion is the more compelling when it is recalled that the reason why the actual outcome for the claimant patient if treated promptly is not known is that the defendant by his negligence prevented that outcome becoming known.” (Opinions of the Lords of Appeal for Judgment in the Cause, 2005).
Conclusion:
A lot regarding the amount of quantum and restitution in accidents and injury would depend upon the perspective taken by courts and the impact of injury. This, the courts would need to take an objective view and the degree of negligence of the defendant vis-à-vis contributory negligence of the applicant to reach a final verdict on the quantum of compensation. The quantum merit or “as much as he deserved” on account of the pain and suffering. Loss of studying capacity and in this case, inability to play squash and tennis is also present.
I hope you would consider the fact in its right perspective and favor for an award of£4000 as compensation for injuries to my clients.
Thank you,
Sincerely,
- Davies
Legal consultants for the Rudd’s.
