Civil action for Personal Injury

You have recently started working as a trainee solicitor with the firm 'Andre Jordans & Co. Solicitors'. You have been given two files on Mr William Bragg (date of birth 11/11/1985). The first concerns a court matter for which you obtain public funding (legal aid) in order to assist Mr Bragg. The second is a personal injury claim occurred on the 12th April 2007. On the 4th December 2009 Mr Bragg telephones you and says he is concerned that he has not heard from the firm for some months and he is unclear what is happening or what procedural steps should be taken. On reviewing the file, you find there are little correspondence and no reports. The notes on the file show Mr Bragg was a passenger in his father, Bobby Bragg's car when the accident took place. William Bragg suffered a compound fracture to his left arm, a lacerated face (as a result of being thrown through the windscreen) and still complains of lower back pain. He also has three scars on his face. William has been unable to work since the accident due to continuing back pain. He was earning £300 per week as a builder's labourer. On the 15th June 2007, the other driver; Mr B Johnson was convicted at Stratford Magistrates Court of careless driving.

In answering the following questions, you should refer to any statutory provisions where appropriate.

Basis of the Action

The action will be founded in negligence. It will be necessary to show, on the balance of probabilities, that there has been a breach of duty, that injury loss and damage has resulted from the breach and to evaluate the claim for compensation.

The Limitation Period

The Limitation Act 1980[1] allows 3 years from the date of the accident or injury to issue proceedings. Assuming the client has full capacity and knowledge, we must issue proceedings by 12 April 2010.

Relevance of conviction

Mr E. Johnson was convicted of careless driving at Stratford Magistrates Court in June 2007. We must establish that this arose from the accident in which the client was injured. If directly relevant, we should obtain a copy of the police report and confirmation from the police and Magistrates Court of the conviction. The standard of proof of beyond all reasonable doubt in criminal courts is greater than the civil standard of balance of probabilities. Therefore, evidence of a relevant conviction may be used in civil proceedings and may be pleaded as evidence of negligence.
We need to establish what penalty was imposed. An endorsement on the licence is not a 'disability, prohibition or other penalty'[2]. However, if Johnson was fined, the rehabilitation period is five years, which is the rehabilitation period applicable to a fine and may be referred to.

If the conviction was nothing to do with the accident, it may still be possible for cross examination questions to be put to Mr Johnson about his driving history generally but the conviction would not be pleaded.

Jurisdiction

We need to establish that the accident occurred within the jurisdiction of the courts of England and Wales and not in Scotland. But since the conviction was at Stratford in England according to information given, it's not relevant to this case. If we had issued in England without permission and the accident occurred in Scotland and that is where Mr B Johnson also resides, he can dispute the jurisdiction of the court[3]. Moreover, Scottish law would have been applicable.

We may serve proceedings out of the jurisdiction even if Johnson is domiciled in Scotland, with the court's permission[4] if the accident occurred within the jurisdiction of the English courts.

Who to Sue?

It is possible we will need to issue proceedings against both drivers. Father may wish to obtain legal advice regarding any damage to his car and/or any personal injury suffered. We cannot act for him due to conflict of interest[5].

Although Johnson's conviction may be relevant, the father may also have been driving negligently such that, on balance of probabilities, he may be found liable in part for the accident, even though there was insufficient evidence to secure a criminal conviction.

Priority step

We must arrange a meeting as soon as possible with the client. We require a good deal of information from him and he must sign some documents. We must demonstrate acting in the client's best interests and provide a good standard of service.[6]

Funding arrangements

We must organise funding arrangements with the client. Although he has legal aid on another matter, legal aid is no longer available for personal injury claims[7]. However, he may have household insurance or union backing in place which may provide legal expenses cover.

If there are no “before the event” insurance policies to utilise, we can prepare a Conditional Fee Arrangement and work on a “no win no fee” basis. This is not so great a risk as it is likely he will succeed but we should advise him that if he could still lose his case if he rejects any Part 36 offers[8] which he then fails to beat at court. He may then become liable to pay the defendants' costs.

We should obtain “after the event” insurance to cover any liability for costs which might arise and include notice of funding within the letter of claim[9].

Information to be obtained

It will be necessary to obtain evidence of conviction and a copy of the police report. We can ask for the attending police officer's details and write to the police station requesting this report. This will include useful evidence of witnesses interviewed by the police and who we may wish to interview if no admission of liability is made by the defendants.

On a practical note, we need to obtain the current addresses of both potential defendants so we can write a letter of claim. We have just enough time to allow for the three month period in which the defendants may reply. However, as time is running short, we should ask both defendants to provide details of their insurers and policy numbers so we can write directly to the insurers to advise them about the claim.

Although we have until 12 April 2010 to issue proceedings, it may be sensible to ask the insurers to agree to waive their limitation defence and agree to a delay in issuing proceedings without any risk to the client. This would enable us to enter into negotiations hopefully to conclude the claim. This is perhaps only likely if the insurers are willing to admit breach of duty subject to proof of causation and quantum.

The Personal Injury protocol and the letter of claim.

The personal injury protocol has not been complied with as no letter of claim has been sent. The protocol aims to enable early and better informed pre-action contact between parties, the aim being to dispose of cases before they are issued and to ensure compliance with the overriding objective[10]. The court may impose costs penalties on parties who have not complied with the protocol unless they can show good reason[11].

In order to comply with the protocol, we must prepare and send a letter of claim to the defendants containing the required information. We need to ensure that we have enough information from the client to forward a compliant letter.

It would be sensible to include in the letter a request to waive the need to issue proceedings under the Limitation Act. If this is not agreed, and we are still not ready by 12 April 2010 to serve proceedings, we can still issue a protective claim form which must then be served within 4 months from the date of issue[12]. If we do have to serve out of the jurisdiction, this time limit is extended to 6 months[13].This date must be diarised.

The letter of claim must include a summary of the facts, an indication of the nature of any injuries and the likely claim for financial loss[14]. If the client was treated at hospital, we need the hospital name and address and reference number. We must obtain the client's national insurance number and confirm his date of birth. The NI number will allow the claim to be registered with the DWP. Any details of NHS treatment charges and any benefits paid as a result of the accident will be provided on a CRU certificate. We should advise the client that his loss of earnings claim may be reduced by any benefits received.

The defendants must be advised to pass the copy letter included onto their insurers as soon as possible. We must provide sufficient information for the defendants to assess liability and estimate the likely value of the claim. We should include reference to the conviction of Johnson at the Stratford Magistrates Court, if relevant to the accident, and invite his insurers to admit liability or at the least to admit the relevance of the conviction to the civil issues.

We should set out our choice of medical experts: “before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in

the relevant speciality whom he considers are suitable to instruct”.[15] We should indicate that, given the time constraint, we must instruct the experts without delay and invite agreement response within 28 days.

Contributory Negligence

Although the client's driving cannot have caused the accident, he may have contributed to the cause, nature and extent of his injuries such that a reduction of damages may be appropriate. We need to establish whether he was wearing a seatbelt - if he was not then it is likely that his damages could be reduced by 25%.[16] It will be important that the medical experts (see below) consider whether in fact any action of the client had any contributory effect.
Medical evidence

We must instruct medical experts and obtain their opinions in support of the client's injuries.[17] Depending upon which track to which the case is likely to be referred, the defendants may be entitled to request permission to obtain their own reports but it would be sensible to ensure there is no objection at the outset to the experts we wish to instruct.

We will need a Consultant Orthopaedic surgeon to deal with the fractured forearm and lower back pain. We will need to demonstrate in terms of causation that the injuries and ongoing symptoms are wholly caused by the accident or, if to any extent pre-existing, that the accident has accelerated or exacerbated symptoms and is not attributable to his pre-accident job as a labourer.

We may also need evidence from a maxillo-facial surgeon in respect of the facial injuries. Photographs would be useful before and after the accident as a comparison as to the extent to which scarring still is evident. We may need to consider obtaining psychological evidence if the accident has caused any psychological trauma.

We must obtain the GP and hospital records and any imaging for the medico-legal experts to refer to so will need the GP and Hospital names and addresses. The client must sign a form of consent to send to the records administrator with a fee of £50.[18]

When proceedings are served, medical evidence must be attached to the proceedings. The CPR provides that evidence in support is allowed rather than a full report. We may not have time to obtain all reports but the Court can be asked for permission to serve further reports if additional evidence is necessary.

We should make enquiries of recognised experts as to their availability to prepare a report within the time-scale and prepare a letter of instruction.

Financial Loss information required.

We will need to prepare a schedule of loss ready to serve with the proceedings setting out the financial losses and expenses incurred.[19] For this, we must obtain wage information from the client's employers for a period of 13 weeks pre-accident together with details of any loss of bonuses, loss of overtime and any loss of pension contributions during absence and establish whether any statutory sick pay was paid in order to calculate the net loss.

We need to establish whether the client is now back at work. If not, we will need to know when his employment terminated and whether it was accident-related. If he has returned to work, we should check whether he is still doing the same job as pre-accident and is on the same rate of pay and working the same hours. If the client is now at risk of losing his job because he can no longer work as he did pre-accident and is therefore at a disadvantage on the labour market, we can include a claim for this.[20] We should ask the medical experts to consider work capacity in their reports.

When we meet the client, we must also establish any other losses/expenses/purchases which have been incurred or arisen because of the accident. A suggested list is the cost of any prescriptions and medication, care and assistance provided, clothing damaged, cost of any remedial medical treatment such as physiotherapy and the purchase of any special equipment.

We must ask the client to provide documentary proof, if he has it (such as receipts), of his expenses so we may deal with disclosure as required.[21]

Witness statements

It will be important to obtain a detailed statement from the client. We should deal with the circumstances of the accident as, at present, it is not clear which driver was at fault and we may need to proceed against both to ensure the client's interests are properly protected.

We must ensure that we have an accurate factual account of the circumstances of the accident as we will need to prepare a Particulars of Claim to serve with the claim form which contains a statement of truth which must be signed by the client.[22]

It may be necessary to obtain independent evidence from other people who saw the accident. We should send out witness questionnaires to potential witnesses asking for further information. Other witness evidence may be needed to support any claim for care and assistance.

We must establish whether the injury has affected the client's daily lifestyle including any hobbies. This may increase the award for general damages which includes compensation for loss of amenity as well as pain and suffering.

1b. What would be your course of action (if any), if you receive a letter telling you that William is secretly working and this is a fact not known to the other side, or the Legal Services Commission?

My duty to the Legal Services Commission would be to ensure they were aware of any change in circumstances and I may inform them of information received even if that would normally breach client confidentiality and privilege: “In the case of a publicly funded client, you may be under a duty to report to the Legal Services Commission information concerning the client which is confidential and privileged”.[23]

However, that is a serious step and it would be important not to jump to conclusions. It may be possible that the information is malicious and untrue. Therefore, I would speak to the client, to whom I also have a duty to act in his best interests and question him about the allegations and try and ascertain the truth.

If I have a reasonable belief that the information is true and would constitute a reportable change in circumstances, I would advise the client of that and that it may affect his eligibility for legal aid. I would advise him of the penalties if he falsely claims there to have no change in circumstances.

As a separate issue, even if the change in circumstances would not affect his eligibility for legal aid, it may have repercussions in the civil claim. The schedule of loss contains a statement of truth signed by the claimant.

If I believed that the client was working but, nonetheless, prepared a schedule including a claim for past and future loss of earning, that would be inaccurate and compounded by the document being signed by the client. There are two likely repercussions. Firstly, he is open to court sanctions for contempt for verifying a statement of truth containing a false statement without an honest belief in its truth.[24]

Secondly, I may be subject to disciplinary action by the Solicitors Regulatory Authority. A solicitor, as an officer of the court, owes a duty not only to their client but also to the court. It would be unacceptable for a solicitor to collude in the court being misled. Appropriate advice would have to be given to the client. If the client was unwilling to accept that advice, it may be necessary to apply to the court to come off record and no longer represent him.

Bibliography

Bamford K. et al Legal Foundations (2009) College of Law

Civil Procedure Rules 1999 and as up-dated

Data Protection Act 1998

http://www.sra.org.uk/

http://www.sra.org.uk/code-of-conduct.page

http://www.sra.org.uk/news/sra-update/224.article

Limitation Act 1980

O'Hare J. : O'Hare and Brown Civil litigation Sweet & Maxwell 14th edition

Personal Injury Protocol implemented January 1999 and as up-dated

Practice Direction - Personal injury protocol

Rehabilitation of Offenders Act 1974

Sime S. : A Practical Approach to Civil Procedure OUP Oxford; 12 edition

www.lawsociety.org.uk

www.legalservices.gov.uk

www.legalservices.gov.uk

[1] Limitation Act 1980 s.11

[2] Rehabilitation of Offenders Act 1974

[3] Civil Procedure Rules (CPR) part 11.1(a)

[4] CPR parts 6.36 and 6.37

[5] Solicitors Regulatory Authority (SRA) Code of Conduct 2007 rule 3

[6] SRA Code of Conduct 2007 rule 1

[7] Access to Justice Act 1999

[8] CPR Part 36

[9] CPR Practice Direction pre-action conduct rule 9.3

[10] CPR rule 1

[11] CPR personal injury protocol practice directions 4.4, 4.5 and 4.6

[12] CPR part 7.5.2

[13] CPR part 7.5.3

[14] CPR Practice Direction 7.1.

[15] Personal injury protocol 3.15
[16] Froom v Butcher (1976) QB 286

[17] CPR part 35

[18] Data Protection Act 1998

[19] CPR Practice Direction part 16.4.2

[20] Smith v Manchester Corporation (1974) 17 KIR 1

[21] CPR part 31

[22] CPR parts 16.2.8 and 22.1

[23] SRA Code of Conduct 2007 rule 4.19

[24] CPR part 32.14