Case of Personal Injury

This is a case of personal injury. Personal injury is defined as any disease injury or impairment of a person’s mental condition that is caused by another person. [1] For there to be liability the claimant must establish that the defendant owed him a duty of care, the negligent action breached the duty and this result in the injury complained of. [2]

CASE SUMMARY

Mr William Bragg with date of birth 11/11/1985 was a passenger in the car driven by his father Mr Bobby Bragg on the 12th of April 2007 when they were involved in a road traffic accident with a car driven by Mr B Johnson. The claimant sustained a personal injury which resulted in a compound fracture to his left arm, a lacerated face which resulted from being thrown through the windscreen, he also complains of lower back pain and has three scars on his face. He has not being able to return to his work as builder’s labourer where he earns £300 per week due to continuing back pain. The defendant was convicted for careless driving at Stratford Magistrates Court on 15th June 2007.

AIM OF THE REPORT

The aim of this report is to identify the legal and procedural issues from the facts of the case, set out the course of actions and advise Mr Bragg on the case status and steps to be taken to bring the case to a satisfactory conclusion.

CONFLICT OF INTEREST

For a firm to act for a client the interviewing solicitor must check that there is no conflict of interest or the possibility of conflict of interest, this is done by checking the firm’s clients records if the firm had acted for any of the parties before or where the interest an existing client clahes with a potential client making it difficult to represent them fairly. [3] Where it is established that there is conflict of interest or the potential do exist the solicitor may decline [4] to act for either of the parties after carefully explaining to the parties, they will be advised to find another solicitor of their choice but if the two parties feel satisfied he may act for one or the two parties. [5] This arrangement must be documented and copies kept in the files to protect the firm and the solicitor. [6] In this case there is no conflict of interest as the facts of the case did not suggest that the firm is acting or has acted before for the defendant. Once the solicitor has been instructed and agreed to act for the client a copy of the firm’s client care letter should be given to the client to read and sign and where further explanation is needed this should be provided, the client care letter will explain what the client can expect from the firm and the solicitor acting for him and what is expected of the client to make the relationship work to his best interest and to protect the firm as well this must contain the firm’s complain procedure should he not be satisfied with any aspect of the firm’s service [7] and confidentiality duty owed to the client. [8]

LIMITATION PERIOD

The law will not permit a defendant in tort or contract to be held responsible indefinitely, [9] at the first interview the solicitor should clarify if the claim is statute barred and this should reviewed regularly and noted on the file and the solicitors diary to protect himself and the firm from a claim of negligence. [10] Generally in civil claims the limitation period is six years but in personal injury the claimant has up to three years to issue claim proceedings otherwise the defendant [11] can rely on s.11 of Limitation Act 1980 [12] as a defence. [13] The limitation period will run from the date from which the cause of action accrued or the date when the claimant become aware (if later) of the injury. [14] Exceptions are only where s.12 of Fatal Accident Act 1976 [15] and in the case of disability where Limitation Act 1980 sections 28 and 28a [16] will be applied. William Bragg will be able to bring proceedings since he is of age at 24 years and the limitation period still runs till 12th April 2010. [17]

FUNDING

It is a good practice to establish how the case will be funded at the meeting to take instructions, the client should be given a rough estimate which will be subject to changes depending on whether the case proceeds to full hearing or not. [18] There is no legal aid for personal injury [19] hence the client should be advised on charges and how it is calculated, charges that may be paid to others, liabilities that may arise and how unpaid bills may be deducted from claim, various ways of funding should be discussed, like insurance, conditional fee arrangement [20] and where conditional fee arrangement is agreed this should be included in the claim letter to the defendant his insurer or solicitor and where money is paid on account it should be acknowledged in writing and receipt issued periodic bills should be regularly provided. [21]

FINDINGS AND DOCUMENTATION

To make a claim in personal injury there are documents that must be prepared or received in file together with form N1 which is the claim form for civil proceedings. [22]

CLIENT STATEMENT

Client’s statement is very important as this will form the basis of his claim, this should have been done at the meeting to take instruction, the draft would be prepared in the client’s own words and in chronological order of events this will be sent to him for correction and the final version must be signed by the client, where this is found on file the client will need to provide further information if there is any change or addition to the previous statement. The client’s statement must provide full name, date of birth, national insurance number, date, time, weather condition, place of accident, parties involved hospital attended, police investigation and established cause of accident names and address of witnesses and telephone numbers, nature of injuries, specialist treatment and the names and address of the specialist, general practitioner’s details, any material lost or damaged, current state of health and on going treatment. [23]

WITNESS STATEMENT

Witness statement of the driver Mr Bobby Bragg will be very important and also any other eye witness where this has not been done the witnesses should be contacted and the report with name, address and profession must be signed and dated as the statement of truth. [24]

MEDICAL REPORT

A medical report must be obtained before starting proceedings, these may include past medical records from own general practitioner, hospital attended for emergency treatment and any specialist from which treatment was obtained. The client will be expected to provide contact details of these people and letters will be sent to them with copies of the consent forms signed by the claimant. The report may provide insight to his present condition, possibility of returning to work and the prognosis of the injury this will be important in the claim of William Bragg considering his work as a builder’s labourer which is a position that involves the use of the back in bending and lifting. [25]

POLICE ACCIDENT REPORT.

The police report of the accident being a crucial evidence in the claimmust be obtained, this may be delayed if criminal proceedings is on going, the report will contain the parties statements and other witnesses, damaged properties, the road worthiness of both vehicles, the status the drivers with regards to their qualifications to drive including their insurance covers, the nature of injuries sustained, sketch plan of the area and photographs of the scene of the accident. [26]

RELEVANCE OF PREVIOUS CONVICTION.

Since the defendant was convicted of careless driving obtaining the report may help to prove that the carelessness of the defendant caused the injury to William Bragg this may influence the other party in accepting liability that may lead to early settlement, under s.11 of Civil Evidence Act 1967 [27] the claimant is entitled if pleaded in the particulars of claim by giving details of the conviction and the date proving the defendant was negligent in causing the claimant’s injuries and the conviction can be relied on that the defendant caused the injuries. The burden of proof is therefore reversed on the defendant to proof that he did not cause the injuries. [28] If this conviction was not related to the accident of 12-04-2007 then the claimant cannot rely on the conviction as a proof of guilt. [29]

CONCLUSSION AND RECOMMENDATIONS

From the facts of the case it appears William Bragg may have a strong case for damages against B. Johnson. The main issue is to prevent the claim from becoming statute barred, with the information on the client’s statement on file a claim notice will be sent to the defendant on 5th December 2009 with advice that the letter be passed to his insurer or solicitor for investigation of the claim. Another letter to a specialist to obtain medical report on the injuries will be sent to assist in calculating damages. To obtain police accident report a letter will be sent with required fee to the Chief Inspector of the area for a copy of the accident report which may be a valuable evidence to prove the defendant’s negligence. [30] Another letter will be sent to Mr Bobby Bragg to obtain a witness statement which must be signed as a statement of truth for it to be admissible in any proceedings that may follow. [31] With the conviction of B Johnson on 15th June 2007 a letter will be sent to the clerk at Stratford Magistrates Court to obtain the certificate of conviction. [32]

DAMAGES

The award of damages is to compensate the claimant for his loss which is attributable to the negligence of the defendant, this is designed to put the claimant in the position he would have been if not for the injury caused by the defendant. [33] The two damages that could be available to William Bragg are special and general damages. Special damage will take into account his actual loss since the injury and the trial, these will include provable loss of earnings until trial, damage to clothing and repair to vehicle where this is involved, travel costs due to the accident like trips to physiotherapy clinic, hospital appointments, private medical and cosmetic treatments for the facial marks. Where the claimant receives any payment from his employer, tax rebates or income support these will be paid back from his claim.

In calculating the general damages the court will consider pain and suffering from the injury either as a result of medical treatment, the injury results in reduced life expectancy which is known to the claimant the court will consider this in calculating damages. This is known as quantum of damages which can be calculated using Kemp and Kemp, section on quantum damages in the monthly publication of Current law or the guidelines for the assessment of general damages in personal injury cases by the judicial studies board. The loss of future earnings is figures known as the multiplier and multipland, these takes into consideration the annual net loss plus the year which the claimant is to be awarded. The Ogden table which provides data on longevity, interest rates, and work patterns is published by the Government actuaries.

PRE-ACTION PROTOCOLS

The objective of pre-action protocols is to reduce delays in the whole process of making claims and also make it less expensive, pre- action protocols consist of seven elements which the parties are expected to follow. [34]

LETTER OF CLAIM BEFORE ACTION

A letter of claim should be sent to the defendant or his solicitor if known as soon as there is evidence of a potential claims, it appears here that William Bragg may have a good claim against the defendant. It should be stated that the letter must be passed to the defendant’s insurer to enable them investigate the claim and the potential liabilities the defendant will be warned that failure to do so may affect his insurance cover. The letter should give the name of the claimant and the address of the hospital with reference number where treatment was received, the nature of the injuries and damages sought which at this stage may be estimates the claimants date of birth and national insurance number should be provided when the defendant confirmed the identity of his insurer. [35] The next step is to prepare the claim form which is form N1 for civil proceedings and this contains “the names and addresses of the respective parties, give a concise statement of the nature of the claim, state the remedy sought and contain a statement of value where the claim is for money”. [36]

ACKNOWLEDGMENT AND RESPONSE

The defendant or his insurer is expected to acknowledge the letter of claim within 21 days after which proceedings may be issued if there is no reply, if acknowledged the insurer has up to 3 months to investigate the claim of which to admit the claim or deny it with reasons. [37] If the defendant partially admits the claim and alleged contributory negligence on the part of the claimant for example not wearing a seat belt may be a contributory factor to the severity of the injuries by the claimant the defendant will be expected to provide details of the negligence. [38]

DISCLOSURE OF DOCUMENTS

Early disclosure of relevant documents will help to clarify issues in dispute, disclosure of documents is expected to be voluntary and where the defendants alleged contributory negligence relevant information on this must be passed to the claimant’s solicitor. Annex B of personal injury protocol detailed the documents to be disclosed but this also includes relevant documents which are not listed but are in possession of the parties disclosure is as defined by r. 31.2 of Civil Procedure Rules 1998. [39] Where a party refuses to disclose a particular document the other party may invoke the provision of s. 33 Supreme Court Act 1981 [40] or County Court Act 1984. [41]

SELECTION OF EXPERT

The personal injury protocol encourages the use of mutually agreed expert both before and during proceedings this will reduce area of disagreements and also reduce cost of litigation. [42] The instruction is usually by a letter agreed to by the opposing party the list of experts is contained in the register maintained by the Law Society or organisation such as Academy of Expert Witness. The fee for the expert witness is recoverable; the claimant may

not disclose the report to the defendant unless he intends to rely on it the course of the proceedings. [43]

OFFER OF SETTLEMENT

It is the courts view that litigation should be the last resort; the parties are encouraged to seek alternative dispute resolution. Part 36 of Civil Procedure Rules [44] deals with the offer to settle from the defendants where liability is accepted. Form N242A notice of offer to settle [45] must be completed the claimant has 21 days to accept or reject the offer [46] . The defendant may choose this option to put pressure on the claimant and as a form of protection against adverse orders for cost if the claim is partially successful. The offer must be for payment of a lump sum and can be made at anytime before proceedings and on appeal and can be withdrawn. If withdrawn after the before the expiry of the relevant period it must be done with the permission of the court if after the expiry of relevant period provided the notice of acceptance has not been served court’s permission will not be required. [47] For part 36 offer to be valid it must comply with part 36.2 (2). [48]

COSTS

Non compliance with the pre-action protocols may lead to imposition of penalty by the court by way of costs on the non conforming party. The claimant must be advised that he might be liable for the defendant’s cost after 21 days after the notice of offer until judgement, if the offer is accepted payment must be made within 14 days otherwise the claimant can apply for judgement to be entered. [49]

Where the parties are unable to resolve the issues the contentious part may go into hearing and where liability is denied the claimant can issue proceedings. The choice of Court will depend on the amount of damages sought for the injuries by completing; this is governed by part 23 of CPR 1998. [50]

LETTER TO Mr WILLIAM BRAGG

After reviewing the file a letter will be sent to the claimant with details of what documents are needed to proceed with the claim including the process to follow in making the claim and that the defendant has been contacted and letters sent out to obtain all needed reports. He will be re- assured that we are still within time and if the other party do not respond or they needed more time for their investigations we will proceed and issue notice of proceeds and may later apply for stay of proceedings to enable them complete their investigations.

QUESTION 1b

This involves the issues of confidentiality, exceptions to confidentiality and the core duty of a solicitor. Solicitors are regulated by the Solicitors Regulation Authority and are expected to practice according to the Code of Conduct issued by the regulation authority. [51] Rule 1 specified the core duties of a solicitor and applicable here will be rule 1.01, 1.02, 1.06 and rule 4 of the code of conduct. [52] Rule 1.01 states that the solicitor must act at all time to uphold the rule of law and the proper administration of justice. [53] The solicitor does not only owe a duty to his client but has a duty to the court and third parties, therefore he must not deceive or knowingly or recklessly mislead the court therefore all relevant documents must be disclosed. [54] According to rule 1.02 the solicitor must always act with integrity towards his client, court, professional colleagues and the public [55] and where there is conflict between core duties public interest must take precedence. [56] The public must have confidence in the solicitor that either in practice or outside the solicitor will not be involved in any act that can undermine this confidence and thereby damage the legal professions ability to serve the society. [57]

Any course of action will require the consideration of Rule 4 of confidentiality and decide whether this issue falls within the exceptions to the rule of confidentiality the exceptions [58] may be prescribed by statute as in Proceeds of Crime Act 2002, [59] Criminal Procedure and Investigations Act 1996 [60] or by common law as in Finers (a firm) and others v Miro [1991]. [61]

Rule 4 makes it obligatory for the solicitor and the firm to keep the affairs of clients including former clients confidential except disclosure is permitted by law. [62] Guidance note to rule 4 provides explanation when confidential information may be disclosed this includes specific power of HM revenue. Since public found is involved the solicitor is bound to act in the public interest.

To resolve this issue William Bragg will be invited for an interview and be asked to confirm or deny the allegation, the consequences of his action if confirmed will be explained to him which includes informing the Legal Service Commission and the other party, that this will affect his total claim as the amount earned while working will be deducted from his total claim and the Legal service Commission will recoup whatever has been paid towards his legal aid. [63] A letter about the interview will be sent to him confirming the interview and the advice given with a copy kept on file. Letters will be sent to the other party and Legal Service Commission informing them of the change in circumstances with copies of the letters retained in the file. Where William objected to this course of action I will exercise my right to stop acting for him under rule 2 of the code of conduct. [64]

BIBLIOGRAPHY

BOOKS

Miles et al (2009/10) Foudations for the LPC: OUP

Cunningham- Hill S. Elder K. (2009/10) Civil Litigation Handbook OUP

Sime S. (2009/10) Civil Litigation: The City Law School

Browne K. Catlow M. (2009) Civil Litigation: College of Law

Rt Hon Lord Justice Kay M. (2010) Blackstone’s Civil Practice: OUP

Sir Jacob I.H. Jack (1987) The Fabric of English Civil Justice: Stevens & Sons

Sir Jacob I.H. Jack (1982) The Reform of Cicil Procedural Law and other Essays in Civil Procedure: Sweet & Maxwell

UEL. (2009/10) Law in Practice Reading Materials: School of Law

UEL. (2009/10) Law in Practice Module Guide: School of Law