BPTC Proposed Proceedings| Free BPTC/BVC Opinion

BETWEEN: DARREN YOUNG Claimant -and- LIAM HARRIS Defendant

OPINION

1. I have been asked by those instructing me to advise the proposed Claimant in this matter, Mr Young with regard to an incident on the 22nd of February 2006 during which his car was damaged in a collision and his shoulder injured. I am asked to advise upon the Claimant's prospects of success in this case with a view to issuing proceedings against the Defendant, the further evidence required and the next steps that ought to be taken in this case. I am obliged to those instructing me for their full instructions and for enclosing statements, sketch plans and the medical report of Mike Lane.

2. The incident occurred at about 1.20pm on the 22nd of February when the Claimant was stationary in his vehicle on Ashton Road, Salford. The traffic lights were on red and the Claimant was in a queue of traffic waiting to turn right into Cheetham Hall Road. The Cost Save supermarket was on the Claimant's left hand side. The Claimant states that his vehicle was positioned at the point where the road splits into two lanes, one for those turning left and another for those turning right. The Claimant has produced a sketch plan to illustrate this.

3. Whilst the Claimant was stationary, he heard an engine revving to his left. He then felt a heavy impact to his left and saw that the Defendant had driven out of the Cost Save car park and collided with his passenger door.

4. Following the collision, the Claimant remained in his car and before he was able to call the police, the Defendant came over to him, shouting and waving his arms around. When the Claimant got out of his car, the Defendant accused him of causing the accident, leant into the car and tried to remove the keys from the ignition. The Claimant tried to stop him, shouted at him to let go and eventually grabbed his arm to prevent him from taking the keys away. At this point, the Defendant resisted, pulled back and repeatedly yanked the Claimant's arm. The keys fell to the floor and the Claimant shouted at the Defendant and put his hands up ready to fend him off if required. The Defendant did not try to obtain the keys from the floor and the Claimant was able to call the police.

5. Later that day, the Claimant developed excruciating pain in his left shoulder.

6. The Claimant's car was taken to the Accident Repair Centre in Heywood to be repaired and the Claimant has forwarded the relevant invoice.

7. Part of the incident was witnessed by Holly Hardy who was a passenger in her friend's car that was also stationary on Ashton Lane.

8. I am obliged to those instructing me for providing a copy of the Defendant's draft statement which has been voluntarily disclosed. In the statement, the Defendant states that the Claimant was driving on the wrong side of the road. He claims that he stopped in the middle of the road and beeped his horn repeatedly but despite this, he states that the Claimant continued and drove into his car, causing extensive damage.

9. Following the collision, the Defendant maintains that it was the Claimant who was shouting and swearing at him, pushing the Defendant and demanding his details. The Defendant admits that he did try to remove the keys from the Claimant's car but claims that it was his arm that was pulled during this time.

Claimant's Prospects of Success

Shoulder Injury

10. I am asked to advise about the Claimant's prospects of success in this case with a view to issuing proceedings against the Defendant. As the injury was likely to have been caused during the struggle with the Defendant, the claim would be based on the tort of trespass to the person. As I'm sure those instructing me are aware, this tort can be committed in a number of ways however, on the information as given by the Claimant, this appears to be a case of battery.

11. To be successful in this case, the Claimant must prove that the Defendant applied unlawful force to him. As any unlawful physical contact can amount to a battery, repeatedly yanking the Claimant's arm clearly satisfies this requirement. Additionally, the Claimant must prove that the physical contact was intended by the Defendant and did not occur accidentally.

12. The version of events as suggested in the Defendant's draft statement, describe the Claimant as the aggressor who got out of his car and shouted at the Defendant. The Defendant further states that it was the Claimant who pushed him and in an attempt to prevent him from leaving the scene of the accident, the Defendant tried to remove the Claimant's car keys from the ignition. The Defendant states that it was the Claimant who pulled his arm and not the other way around.

13. In her statement, Holly Hardy says that she heard shouting and saw a young man – the Defendant, moving towards the Claimant's car and trying to reach in through the open door. She says that when the Defendant would not stop, the Claimant put his hands up and shouted at the Defendant. This does not appear to shed any light on the version of events given by either party. Both accuse each other of shouting in the moments immediately after the crash and Ms Hardy does not attribute the initial shouting that she heard to either party. The Claimant admits that he put his hands up as suggested by Ms Hardy and the Defendant but states that it was so that he was ready to try and fend off the Defendant if necessary. Additionally, all parties agree that there was an attempt by the Defendant to obtain the Claimant's car keys.

14. In view of the witness statements it cannot be said that the Claimant has a strong chance of winning although there is clearly an arguable case. As there is little corroborating evidence, the success of a claim of trespass against the person depends solely on whether the court believes that the Claimant's version of events are more probable than those put forward by the Defendant. There is no doubt that the Claimant has sustained a shoulder injury but in his medical report, Mr Lane states that it cannot be said with certainty whether the injury was caused when the Claimant tried to resist the removal of the ignition key by the Defendant. However, as those instructing me are aware, the Claimant only has to prove this on a balance of probabilities and Mr Lane does say that it is more likely that the shoulder was injured in this way.

15. Even if the court is minded to accept the version of events as put forward by the Claimant, the Defendant may still be able to plead self-defence. He will be able to rely on self-defence if he can show that he was only using reasonable force to protect either property or himself. What amounts to ‘reasonable force' is a contentious issue and one which is to be answered on the facts of each case. As I'm sure those instructing me are aware, the general rule is that of proportionality and the court will consider whether yanking someone's arm repeatedly was a reasonable response to having your arm grabbed. If the Defendant successfully relies on self-defence, the claim will fail.

16. Additionally, there is the possibility that the Defendant could make a counterclaim based on his version of events. This would see Mr Young having to defend his actions and maybe even having to rely on self-defence himself.

17. Accordingly, in view of the facts, it is my view that the Claimant has at least an arguable case against the Defendant. I would like to be able to give a more favourable opinion, however, I am bound by the rules of professional conduct to advise appropriately given the circumstances and needs of the client and do not wish to give Mr Young a false impression of the likelihood of his claim succeeding. As such, my advice is that a claim could certainly be made and possibly won but the Claimant should ensure that he has appropriate insurance to cover the eventuality of having to pay the Defendant's costs.

Damage To The Claimant's Car

18. This would be under the tort of negligence. Mr Young would need to prove on the balance of probabilities that the Defendant owed him a duty of care, that the duty was breached and that he suffered damage as a result. This is clearly a situation in which it has long been accepted that a duty exists. The Defendant will be judged according to the standards of the ordinary reasonable driver which he will be considered to have fallen below if the Claimant's version of events is accepted by the court. The Claimant suffered damage to his vehicle and the claim should be for the cost of repairs.

19. More evidence is required – as set out below, as to the nature of the location of the incident. It needs to be established whether the road is how the Claimant has drawn it on his plan or whether the Defendant's sketch shows the correct layout.

20. If, once further investigation has taken place, it can be established that the Claimant's version of events is correct then there is a very strong chance of success in a negligence claim. Any such claim would have to be brought within six years of the date of damage – in this case, 22nd February 2006.

Quantum

21. The nature of Mr Young's injuries are in the medical report prepared by Mr Mike Lane F.R.C.S.,M.R.C.P. he states that Mr Young has sustained a musculo-ligamentous injury to his left shoulder most likely sustained when he was trying to stop the Defendant from taking the ignition key from the car. The Claimant suffers residual pain and tenderness, probably due to a tear to the left rotator cuff which is causing impingement, pain and limitation of movement.

22. Mr Lane states that the torn rotator cuff could be repaired surgically but the Claimant's pre-existing respiratory problems mean that the anaesthetic that would be required would render such an operation highly dangerous and make it unlikely that any surgeon would agree to perform it.

23. In these circumstances, Mr Lane considers that the Claimant is unsuitable for surgery and this means that Mr Young will need to rely on pain relieving medication. The medical report states that the Claimant's symptoms are only likely to be ameliorated by quarterly cortisone injections which will be required throughout the remainder of his life. These have been and will continue to be provided on the NHS.

24. In my opinion, the shoulder injury suffered by the Claimant is in between the minor and moderate range of the scale suggested by the Shoulder Injuries section of the Judicial Studies Board Guidelines (8th edition) (2006):

Shoulder Injuries

Category (c) Moderate shoulder injuries. Frozen shoulder with limitation of movement and discomfort with symptoms persisting for about two years : £4,575 to £7,375

(d) Minor - Soft tissue injury to shoulder with considerable pain but almost complete recovery:

(i) in less than two years: £2,550 to £4,575

(ii) within a year: up to £2,550

Further insight may be gained from the following cases:

25. In King v Bowell (2002) LTLPI 26/6/2002, the 60-year-old male Claimant received £7,000 – about £8100 today - for pain, suffering and loss of amenity, after a road traffic accident left him with injuries to his shoulder and knee. The Claimant sustained a rotator-cuff injury to his left shoulder and a sprained medial ligament in his left knee. He also suffered grazes to his elbow and leg as well as pains in his right knee and left shoulder. The Claimant's knee injury resolved but his shoulder injury continued to cause him discomfort and he underwent keyhole surgery. The Claimant was not expected to suffer any future disabilities as a result of his injuries. The Claimant in this case suffered more injuries than those sustained by Mr Young so I would expect Mr Young to recover a lower sum.

26. In Barnes v Barnes (2002) LTLPI 20/3/2002, the 59-year-old Claimant received compensation for shoulder injuries and bruising sustained in a road traffic accident. The Claimant sustained a severe injury to her right shoulder, bruises to the left side of her body and cuts to her hands. Her right arm movement was impaired and required further treatment. She initially underwent two steroid injections. Her symptoms persisted and she had an operation to repair the rotator cuff of her right shoulder. Following the Claimant's shoulder operation she was unable to return to work for a period of 12 months, and she underwent an extensive 13-month period of rehabilitative physiotherapy. The Claimant was expected to have reasonably recovered from her injuries approximately two years after the accident. Her right arm movement was restricted to a minor degree.

27. The case was settled on a global basis and no specific breakdown of damages was given. A figure in the region of £6,250 and £7,000 was estimated by the solicitor for pain, suffering and loss of amenity. The Claimant in this instance is of a similar age to Mr Young. Her shoulder injuries are of a similar nature albeit slightly more serious, however, she also sustained other injuries. It is therefore likely that any compensation awarded to Mr Young will be slightly lower than the figure in this case.

28. In Baker v Tugwell (1998) LTLPI 19/11/98, the 17-year-old Claimant received compensation of £2062.83 – equivalent to £2641.87 today, when her arm was injured in a road traffic accident. She felt a pain in her left arm and shoulder and was diagnosed with "muscular tenderness" in her left upper arm. As a result, she was prescribed anti-inflammatory gel. She suffered pain for a month and discomfort and sleep disturbance but all of her symptoms were resolved eight weeks after the accident. The Claimant in this case was considerably younger than Mr Young but her symptoms were fully resolved whereas Mr Young is expected to require ongoing injections for the foreseeable future. It is likely that Mr Young will receive a higher figure of compensation than was awarded in this case.

29. Although difficult to say with any great certainty, in view of these decisions, it is my opinion that the Claimant would receive in the region of £4000 to £5000 for pain, suffering and loss of amenity for his shoulder injury should his claim be successful.

Further Evidence Required

30. As there is conflicting information in the Claimant and Defendant witness statements about the layout of the road, it would be helpful if photographs could be obtained of the place where the accident occurred.

31. The review of the patient's medical records contained in the report of Mr Lane states “Asian taxi driver reversed into patient.” It is not clear whether this is the same incident, not least because the details in the statement do not suggest that the taxi was reversing when the incident occurred. This needs to be clarified with Mr Young.

32. Details should be obtained about the effect that the injury has had on Mr Young in terms of his daily life and hobbies so that these may be taken into account when assessing quantum.

Next Steps

33. The incident occurred on 22nd February 2006 under the rules of limitation, the Claimant does have six years to make a claim in trespass against the person and negligence.

34. If the Claimant wishes to pursue the matter, a claim must be made in accordance with the pre-action protocol for personal injury claims. It is required that two copies of a letter of claim are sent to the Defendant as soon as there is sufficient information to substantiate a realistic claim. This should be done now if it has not been done already.

35. The letter must contain a summary of the facts, details of the injury and mention that the case is being funded by conditional fee arrangement.

36. As the Defendant's draft defence suggests that liability will be denied, disclosure of all material documents would then take place. I would be happy to advise further at this point.

Next Steps

37. I suggest the following be undertaken:

• Discussion with Mr Young about prospects of success.

• If he wishes to proceed, letter of claim sent.

• Further evidence obtained as set out above.

38. In conclusion, the Claimant has an arguable case against the Defendant in a claim for trespass to the person by way of battery. He would be seeking compensation for the injury to his shoulder and if successful, is likely to be awarded between £4000 and £5000 based on other similar cases. Even if the court accepts the Claimant's versions of events, the Defendant may be able to rely on self-defence if he can show that he used reasonable force in the circumstances. If this was accepted by the court, the claim would fail.

39. The Claimant also has a claim in negligence for the damage to his car sustained in the collision. Further investigation needs to be carried out with regard to the details of the collision but if the Claimant's version of events is corroborated then he has an excellent chance of recovering the cost of repairs to his car.

40. The Claimant has six years to make a claim for trespass to the person from the date that it occurred. Similarly, he has six years, to make a claim for negligence with regard to the collision and subsequent damage to his car. In both cases, the relevant date is 22nd February 2006.

41. Those instructing me should discuss these matters with the Claimant and determine his views on the matters. If he wishes to proceed, a letter of claim should be sent to the Defendant and proceedings can then be issued.

I hope that this is of assistance and should those instructing me wish to discuss any aspects of the case further then they should not hesitate to contact me in chambers. R Smith