Published: Wed, 07 Mar 2018
BPTC Case Preparation
1. I am asked to advise Ms Jones regarding personal injuries unfortunately suffered by her in an incident that occurred on the 4th February 2006. This opinion will focus on her prospects of a successful claim, the appropriate parties to the proceedings and the likely quantum of damages. In addition, I will also advise as to the handling of the claim under the Civil Procedure Rules and the next steps to be taken in this case.
2. The accident occurred when Ms Jones called at the home of her friend, Kate Kalme at 110 Coventry Road, DERBY, DE12AB. As Ms Jones entered the premises, the front door fell from the doorframe and onto her, hitting her right arm. I am obliged to those instructing me for enclosing the medical report of Mr John Hatton FRCS dated 1st February 2007 that describes the injuries suffered by Ms Jones, her treatment and prognosis.
3. Ms Jones was born on 1st February 1985 and is now just 22 years of age. She sustained the following injuries:
(a) A fracture of the right ulna, her dominant hand, leading to the consequences set out below.
(b) Bruising and soft tissue injuries.
After the accident, Ms Jones underwent surgery to fix the fracture with a plate and screws. She was hospitalised for one day and her arm remained in plaster for five days.
Causes of Action and Potential Defendants. The potential parties to this action are Ms Joan Smith and Ms Kate Kalme
Ms Joan Smith
4. Dealing firstly with Ms Jackson. As she both owned and lived in the premises concerned, she clearly falls within the category of occupier for the purposes of a claim under occupiers’ liability. In terms of her relationship with Ms Jones, since Ms Jones received permission to enter from Ms Kalme rather than Ms Jackson, Ms Jackson may argue that she did not give permission for Ms Jones to be there. The courts may however, imply permission, based on Ms Kalme’s assertion that she and Ms Branson were both allowed to have their guests in the bungalow. If permission is implied, Ms Jones would have little difficulty in proving that Ms Jackson failed to ensure that she was reasonably safe in using the premises since the door was not cordoned off, Ms Jackson did not use or indeed advise her tenants to use the other entrance and furthermore, no warning about the door was given by to Ms Jones by Ms Jackson. It is clearly the case that she failed to ensure that Ms Jones was reasonably safe whilst on the premises.
5. There appears to be a very good chance of success of a claim made by Ms Jones under occupiers’ liability. If the courts did not imply permission and treated Ms Jones as a visitor, she is also likely to succeed under the 1984 Act satisfying the duty requirements, especially since Ms Jackson was aware of the danger, after being informed by Kate Kalme. If so, as those advising me will be aware, Ms Jones could obviously only claim for personal injury – the cost of her jumper would not be recoverable.
6. In addition, section 4 of the Defective Premises Act 1972 may apply if the tenancy agreement places Ms Jackson under an obligation to her tenants for the maintenance or repair of the premises. There is some evidence to suggest this in the statement of Ms Kalme since she says that Ms Jackson cleans the front door and other areas daily but not the locked bedrooms of Ms Kalme or Miss Branson, however this would need to be clarified. If so, it is clearly the case here that the injury sustained by Ms Jones is as a result of a defect in the premises, namely the door that was not fixed, in breach of the obligation to repair. Additionally, Ms Jackson knew that the front door was defective following the note and subsequent discussion with Ms Kalme. As with a claim under occupiers’ liability, a claim for breach of this statutory duty would allow Ms Jones to be compensated for her injuries and the damage to her property.
Ms Kate Kalme
7. Ms Jones may also have a claim against Ms Kalme under occupiers’ liability, as she clearly possessed the relevant degree of control for the purposes of being an occupier by inviting Ms Jones into the bungalow.
8. Ms Kalme may argue however, that as she gave Ms Jones a warning – as both clearly say in their respective statements, she discharged the duty required. Whether such a warning would be sufficient to absolve her of liability is arguable, however. The court may deem it insufficient – especially as Ms Jones had no choice but to enter through the doorway, being told by Ms Kalme that they preferred not to use the back door.
9. The issue of contributory negligence may be raised, however, it is unlikely to succeed, as Ms Jones does not appear to have fallen below the expected standard. In addition, there can be no question of volenti since Ms Jones was not sufficiently aware of the risk that she was running.
10. In terms of Ms Jones’ prospects of success, I would advise that the best course of action would be to claim against Ms Jackson under occupiers’ liability. There is a very good prospect of such a claim succeeding. Additionally, Ms Jackson, as landlord, is probably best able to satisfy any compensation claim under her insurance. I do not have any information as to Ms Kalme’s means save for the fact that she works as a cleaner but in the absence of anything further, under these circumstances it would seem that Ms Jackson is a better prospective defendant.
Quantum of Damages
11. The full extent of Ms Jones’ injury is detailed in Mr Hatton’s report. Ms Jones was initially unable to work for two months. She has since returned to work but has been left with some restriction in movement in her right forearm, which is expected to be permanent. Her arm gets stiff, particularly in cold damp weather. She will require physiotherapy each month for the rest of her life and has been left with an unsightly 10cm scar. She is no longer able to enjoy her pre-accident hobby of playing tennis.
12. In my opinion, the arm injury suffered by Ms Jones is at the lower end of the scale suggested by category (c) of the Other Arm Injuries section of the Judicial Studies Board Guidelines (8th edition) (2006):
While there will have been significant disabilities, a substantial degree of recovery will have taken place or will be expected: £11,200 to £22,650
Further assistance may be gained from the decisions in the following cases.
In Cavill v Bryant (1988) CLY 1115, a 16 year old male suffered a fracture of his non-dominant arm and underwent an operation, with a plate and screws fitted. He was off work for 10 weeks and suffered occasional residual pain. He was awarded £1750 for pain, suffering and loss of amenity which equates to around £3454 today. Ms Jones’ dominant arm was affected and she has suffered restricted movement and scarring, it is therefore my view that if successful, she will receive a higher award than the one made in this case.
In Chambers v Bowater Metals (1988) 5 CL 102, a man aged 42 suffered a fracture of the radius and ulna of his dominant left arm leaving it immobilised for 12 months He suffered permanently impaired grip and wrist movement and received £4,500 for pain, suffering and loss of amenity. This award would be worth approximately £8638 today. Ms Jones is considerably younger than this Claimant and will therefore have to suffer her injuries for longer. In addition, she suffered scarring to her arm so any compensation award is likely to be higher.
In Anyon v Searle (1985) Nov HLMR 19, a male aged 16 suffered fractures of the right arm and hand. His forearm was scarred and disfigured and his previous sporting hobbies were affected. He received £6500 – equivalent to around £13,809 today. The claimant in this case is slightly younger than Ms Jones and suffered more injuries. As a result, she is likely to be awarded a lower sum in compensation.
In Boore v Harland Tyres (1986) 5 CL 103, A 24 year old was awarded £7,500 – around £15,576 today, after suffering a fracture of the dominant right radius and ulna and brushing. An elbow cast was worn for four months and colles type plaster for three months. After 26 months the plate and ulna were removed and a bone graft performed, followed by a plaster cast for six months. He resumed light work after three years. After five years his ulna had still not reunited. A second plating operation was performed, followed by a further three months in plaster. These injuries are more severe than the one suffered by Ms Jones and it is likely that she would receive a lesser sum.
Taking these decisions into account, I would expect Ms Jones to receive in the region of £11,500 to £12,500 for pain, suffering and loss of amenity in respect of her injuries. As those instructing me are aware, however, determining quantum with any great accuracy is notoriously difficult.
13. At the time of sustaining injury, Ms Jones worked as a self-employed cleaner, earning about £18,000 per annum. She has continued to work in that capacity since the accident but Mr Hatton advises that she is unlikely to be able to continue doing so indefinitely. Additionally, he speculates that she may have some difficulty in gaining further employment without further training in another field. It is therefore arguable that she is entitled to damages for loss of employment prospects under a ‘Smith v Manchester Corporation’ award. Such awards are very difficult to calculate and it would be necessary to determine Ms Jones’ career and life plans before being able to give an accurate figure but she may well achieve somewhere in the region of £9,000 upwards.
14. Ms Jones must also include losses or expenses incurred. She mentions that her jumper had to be cut at the sleeve. This should be included in her claim– she states that it cost £30 and evidence will be required as to this effect so she should keep any receipt or other proof of purchase. Similarly, she can claim for her painkillers – either the cost of purchasing them or the prescription charges and her bus fares for travelling to physiotherapy. She can also claim for the wages that she lost whilst she was off work but she will need to produce her accounts or some other documentary proof of these losses. Additionally, she can recover the costs of her ongoing physiotherapy treatment from the defendant.
Handling the Claim Under the Civil Procedure Rules
15. As those instructing me are no doubt aware, this action is subject to the pre-action protocol for personal injury claims. As such, two copies of a letter of claim must be sent to the defendant as soon as there is sufficient information to substantiate a realistic claim. Since this is now the case, if these letters have not already been sent, then this must be done as soon as possible.
16. There is a standard format for this letter contained in Annex A of the protocol, which I am able to supply if necessary. The letter should contain a summary of the facts of the incident and include details of Ms Jones’ injuries. If the case is being funded by conditional fee arrangement, this too must be mentioned.
17. The letter of claim should ask for details of the insurer. If those instructing me are already aware of the name of the insurer, a copy of the letter should be sent directly to them.
18. The next step is to await the defendant’s reply – which should be within 21 days of posting. If there is no reply, proceedings may be issued.
19. Details of the claimant’s National Insurance number and date of birth should be supplied to the defendant’s insurer once the defendant has responded to the letter of claim and confirmed the identity of the insurer.
20. The defendant or their insurance company have up to three months from the date of acknowledgment of the claim to investigate it. After that time, they must reply giving details of whether liability is accepted and if not, stating the reasons why.
21. As soon as possible following this, Ms Jones must then send the defendant a Schedule of Special Damages accompanied by her supporting documents.
22. How the claim should proceed from this point onwards really depends upon the defendant’s response. If liability is denied, they must disclose all material documents. At this point, I would need to see any such documents in order to advise further. If liability is accepted, a suitable settlement must be negotiated. Again, I would be happy to advise at this point.
23. I suggest the following be undertaken:
- Letters of claim to be sent to Joan Smith
- Ms Jones to be asked about career and life plans with a view to a Smith v Manchester Award.
- Further information to be obtained about Ms Jones’ ability to continue in current role including projected timescales.
- Letter of authority obtained to acquire medical records.
- Receipts or other proof to be obtained from Ms Jones with regard to losses incurred.
In conclusion, Ms Jones appears to have a good chance of success in a claim against Ms Joan Smith under occupiers’ liability. If successful, she is likely to obtain compensation in the region of £11,500 to £12,500 for pain, suffering and loss of amenity, in addition to damages for other expenses. She may also be entitled to a Smith and Manchester award, although further information is necessary to determine this with any certainty. Two copies of a letter of claim should now be sent to Ms Joan Smith to begin the process. In the meantime, further information needs to be obtained from Ms Jones.
I hope that this is of assistance and would be happy to advise further in due course.
IN THE DERBY COUNTY COURT, Case No.
LYDIA WOOD, Claimant
and LIN LOGAN, Defendant
PARTICULARS OF CLAIM
1. On 4th February 2006, at about 10:00 am, the Claimant entered the premises at 11 Coventry Road, DERBY, DE12AB that are owned and occupied by the defendant. She had permission to enter the premises from a tenant and was accordingly either a visitor of the defendant or a non-visitor to whom a duty was owed.
2. As the Claimant entered the house, the front door fell out of the doorframe and fell on her, hitting her right arm.
3. This accident was caused by the negligence and/or breach of statutory duty under section 2 of the Occupiers’ Liability Act 1957/section 1(3) Occupiers’ Liability Act 1984.
PARTICULARS OF NEGLIGENCE AND/OR BREACH OF STATUTORY DUTY
The defendant was negligent/in breach of their statutory duty under section 2 of the Occupiers’ Liability Act 1957 /section 1(3) Occupiers’ Liability Act 1984 in that they:
- Allowed the Claimant to enter through the front door when it was unsafe.
- Failed to direct the Claimant to make use of the alternative entrance to the house.
- Failed to keep the Claimant away from the door by blocking the door off or by some other means.
- Failed to give the Claimant any or adequate warning that the doorway was unsafe.
- Allowed the doorway to become and remain unsafe and render the door liable to fall and cause injury.
- Failed in the premises to take any reasonable care for the Claimant’s safety.
4. As a result of the accident, the Claimant suffered injury, loss and damage.
PARTICULARS OF INJURY
(a) Fracture of the right ulna.
(b) Bruising and soft tissue injuries.
The Claimant, who was born on 1st February 1985, was taken to the Royal Regency Hospital, Bath and was hospitalised for one day. The fracture was fixed under general anaesthetic with a plate and screws. The Claimant was in plaster for 5 days and used an arm sling during that time. The Claimant is right handed. The Claimant’s injury was reviewed on 6th April 2006 when she was still in considerable pain and taking analgesics. The Claimant received intensive physiotherapy twice weekly for two months and requires one twenty minute session of physiotherapy every month for the rest of her life. She was off work for 2 months but has since returned. The Claimant now has a 10 cm scar as a result of the accident and no longer enjoys her previous hobby of playing tennis. She has almost 90% movement in her right arm and is unlikely to make further recovery, which will eventually lead to her being unable to continue to work as a cleaner.
Further details of the Claimant’s injuries are contained in the medical report of Mr John Hatton FRCS, served with these Particulars of Claim.
PARTICULARS OF SPECIAL DAMAGE
The Claimant’s losses are set out in the schedule of expense and loss served with these Particulars of Claim.
5. Further, the Claimant claims interest pursuant to section 69 of the County Courts Act 1984 on the amount found to be due to the Claimant at such rate and for such period as the court thinks fit.
AND the Claimant claims:
(2) Interest pursuant to section 69 of the County Courts Act 1984 to be assessed.
SCHEDULE OF PAST AND FUTURE EXPENSE AND LOSS
(1) Damage to clothing 30.00
(2) Loss of earnings as self-employed cleaner 6th February 2006 2,341.52 to 6th April 2006 @£18,000 per annum
(3) Continuing loss of earnings thereafter @ £18,000 per annum
(4) Cost of travel for physiotherapy treatment
(5) Continuing physiotherapy treatment @ £20 per month
(6) Cost of painkillers
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