Claims for Damages Arising from the Tort of Negligence - Essay Example

? Claims for Damages Arising from the Tort of Negligence In law, any person who has suffered loss or injury has a likelihood of receiving compensation from making a claim of that loss or injury if it can be proved that the loss or injury suffered was partly or wholly as a result of negligent omissions or commissions of certain acts (s) of another party or person. The compensation is aimed at not necessarily making up fully for what had happened to the person but rather to enable the injured party move on with his/her life with less difficulty.1 If appropriate, claims should be made for damages that arise from a given situation. In the UK, there is legislative provision governing personal injury and loss as well as damages for personal Injury and non-pecuniary loss (1995) Consultation Paper No 140.2 Damages, in law, are defined as an award often in form of monetary consideration paid to a person who has suffers injury or loss as compensation.3 Compensation is crucial in most cases since the loss or injury suffered has possibly changed the ability of a person to undertake normal duties or activities hence limiting the ability of that person to meet his or her needs. For instance, compensation is vital in an event that a person has suffered a disability. Also, compensation can make a significant difference to life of person(s) who has lost a relative in an accident by providing financial support to the person(s). Besides, compensation is in some cases necessary to fund medical care for an injury or illness that is ongoing and was caused by the accident in question. Moreover, compensation or damages is essential in making up for earnings that may have been earned due to an accident caused by another person due to negligence hence denying the person who has suffered the loss ability to earn money to pay his or her bills.4 In order to appropriately advise Cheryl, Lizzie, David and Bellisima Company on whether they have claim/claims for damages arising out of the scenario, and against whom they would make such claims, it is important to understand some aspects of damages that relate to their scenario. First, in their scenario, in an event that their claims become successful they will be entitled to compensatory damages, that is, they will be paid to compensate them for financial loss and injury suffered from the accident. There are two major types of damages namely general damages and special damages.5 General damages are those that aim at compensating the claimant(s) for the specific injury suffered which is of non- monetary nature. These damages are only awarded in claims that have been made by person(s) who have suffered personal injury; for instance, on personal injury caused by negligence of another party.6 Example of general damages include disfigurement, impairment of physical or mental capacity, physical or emotional suffering and pain, loss of enjoyment of life, and loss of companionship among others.7 It is imperative to point out that quantifying these damages may prove difficult and judges mostly base awards on amount placed on similar cases previously. Therefore, how do the courts quantify personal injury claims? As has been noted, such quantification is not easy and most judges rely on similar previous cases to award. In the UK, solicitors in most cases refer personal injury as general damages for suffering and pain. Just like most judges, they quantify personal injury claims based on previous awards on similar cases made by the courts.8 The following factors guide quantification of personal injury claims: one, the extent and nature of the injuries suffered; consideration will be made on similarities of the injuries of the case in hand and cases that are similar and had been decided by courts previously.9 Normally, the extent of the injury usually corresponds to the damages awarded; that is, greater injuries will result to greater awards. Since quantifications are based on precedence, decisions of higher courts are always binding to the lower courts.10 Solicitors should ensure that the quantification of claims are up to date and take into consideration the case in court of appeal in Heil v Rankin.11 Two, personal fortitude and attributes of the client usually guides the quantification of personal injury claims, which is based on the premise that people have different attributes and personalities. While others will recover quickly, others will recover slowly; the speed of recovery is usually reflected on the damages.12 The third factor is the age of the client; it is a very important factor especially in consideration of claims of permanent injuries or fatal accidents. If a claimant is young and the injuries are fatal or permanent, then the greater the compensatory damages since it is expected the person will live with the suffering and pain longer than an older person.13 The other type of damages is special damages that aims at offering compensation to the claimant for the monetary losses suffered and the losses can be quantified. Examples of special damages include additional domestic costs, replacement or repair of damaged property, loss of items that are irreplaceable, extra costs and loss of compensation both currently and foreseeable future.14 Special damages are usually viewed in both commercial and personal actions.15 They can include economic or consequential losses that lead to business losing profits, and direct losses. Therefore, special damages seek to facilitate compensatory damages and punishment for the loss suffered to the claimant as a result of act of negligence committed by the defendant. Special damages intend to restore the claimant to the position he/she had been or would have been if the loss would not have been suffered.16 Special damages can be classified into two major categories; incidental and consequential damages. Incidental damages are those that include compensation of amount of money that can remedy the loss and reinstate the financial status of the claimant.17 On the other hand, consequential damages refers to the kind of damages awarded for the loss of profits that the claimant was expecting to make at a given period of time but could not because of the occurrence that resulted to the suffering of the loss.18 It is worth noting that the court usually ensures that the principle of proximity cause is followed before giving an award. This legal principle demands that the court must be satisfied that the damages must have been proximately caused by the wrongful conduct or negligence of the defendant.19 However, for the defendant to be liable, it should be proved that the defendant could have reasonably foreseen that somebody could suffer loss through their action. This implies that damages may likely be limited to those that were foreseen by the defendant.20 In regard to quantification of special damages, the parties concerned in the scenario at hand need to employ the services of forensic economists, professional valuers, or accountants in order to give the evidence of the value of loss suffered.21 In the Lizzie’s scenario, the following facts are evident. First, the accident that involved Lizzie was caused mainly by the negligence of Donald, the driver who was driving the car that hit Lizzie. This is because, Lizzie had seen the lights go red which meant that all car should stop and give way to the road users from the other direction. So Lizzie started to cycle before the lights go green. Donald, in total disregard of the traffic light rules continued through the red light causing the car to hit Lizzie and knocking her off her bike. As a result, her bike’s front wheel was buckled and she lied immobile on the road. From the happenings, it can be deduced that Donald should be charged of negligence that caused injury to Lizzie and damaged her bike.22 Soon after, the car behind her which was driven by Donna swerved in attempt not to hit Lizzie but runs over her bike, smashing it completely. As a result, the pedals flied off and hit Cheryl, a pedestrian at the crossing, in the face. Cheryl and Lizzie are taken to hospital. Cheryl’s face is swollen up and she could not see out of her right eye. From Cheryl’s situation, it is evident that Donna caused injury to her. The injury meant that she could not see normally until after a week as advised by the doctor, hence could not drive. Unfortunately, she was supposed to drive herself and a friend, David, to her Coldplay concert that night. The injury caused and physical pain meant that they could not go to the concert and they will subsequently lose the money paid on the tickets. Cheryl suffered emotional and physical pain resulting from the injury and inability to drive to the concert. Also, the injury resulted to loss of enjoyment of life on her part and that of her friend. Besides, Lizzie and her friend lost the money paid on the tickets. Furthermore, Cheryl is a model and she was due to model for an advert for the cosmetic company Bellisima, however, the injury meant she would not model. As a result, she suffered monetary loss because she could not earn money from Bellisima for modelling. Also, Bellisima suffered monetary loss due to Cheryl’s inability to model for a week; the loss was ?500,000 in booking and retention fees for the delay in the photo shoot. To make matters worse, it appears that Lizzie’s left arm and leg had been broken and she was slightly concussed, thus meaning that she had suffered more physical harm than earlier observed and imagined. With regard to matters arising in the case above, it is clear that Lizzie, Cheryl, and Bellisima have suffered injuries and losses which entitle them to compensation. It is also clear that there are persons (Donald and Donna) responsible for their losses and injuries and should be charged in a court of law and if found guilty pay for the damages in order to compensate the aggrieved persons in this case Lizzie, David, Cheryl, and Bellisima in addition to being punished if the court deem it fit so.23 Indeed, they all have valid claims for compensation. As such, I will provide legal advice to them regarding whether they have claim/ claims for damages out of their scenario, and against whom they would make such claims. To begin with is the advice To Lizzie; considering the circumstances surrounding her accident, she was indeed entitled to compensation and a sizeable one for that matter. There is no doubt that Donald was on the wrong and the accident was Donald’s fault brought about by his negligence and total disregard of the traffic light rules. Due to wrongful conduct and negligence on the part of Donald, Lizzie suffered physical and emotional injury.24 As a matter of fact, it later appears that Lizzie had broken her left arm and leg and she was slightly concussed. Therefore, Lizzie was entitled to general damages that compensate non- monetary aspects of a particular injury suffered.25 In her case, she suffered physical pain and suffering and loss of enjoyment of life because her injury would not allow her engage in life- enjoying activities. The fact that she was rushed in hospital by ambulance meant that there was sufficient evidence emanating from witnesses. Since she was admitted in hospital there was sufficient medical evidence to support her personal injury claims for compensation. Also, notes would have been gathered from her own medical records to show the extent of the injuries sustained.26 It appears that her left arm and leg have broken; this means that it would hinder her ability to undertake her daily tasks and hobbies hence denying her opportunity to earn a living and enjoying life. These are sufficient basis to claim for compensation. Without doubt Lizzie was entitled to compensation and would have been awarded greater damages because the extent of injuries sustained was greater.27 Unfortunately, her claim is time barred. This is because there are strict time limits that are in place to make an injury claim under the English Law.28 In advising Cheryl, I would assure her that there is a very high likelihood of her being awarded both the special and general damages. The fact that she was a pedestrian crossing who was hit by a pedal that was flying after Donna’s car smashed Lizzie’s bike meant that Cheryl was not at fault and that the fault was on the part of Donna for not exercising adequate caution while driving. The incident caused her physical pain and suffering because of the injuries she sustained; her face was swollen, she could not see from her right eye and could not drive for a week under doctor’s instructions. Therefore, she is entitled to general damages that account for injuries that result to physical pain and suffering.29 The general damages should also cover her loss of enjoyment of life because her inability to drive meant that she could not attend a Coldplay concert that night with her friend David. Furthermore, she is entitled to special damages in order to cater for reimbursement of her money that she had paid on the ticket but lost due to her inability to attend the concert. Moreover, she is a model and she was due to take part in an audition for a car advert but was unable to go to the audition because of the injury sustained; she is therefore entitled to general damages to compensate for her lost earnings for that audition. Inability to take part in the audition may mean that the car company may not consider her for future auditions because of the disappointment she caused them in the previous audition hence she may lose future earnings relating to such an event in that particular car company; as such, she is entitled to general damages to compensate for any loss of future earnings.30 What’s more, she was contracted to model for an advert for the cosmetic company Bellisima but she could not model for a week because of sustained injuries; she is thus entitled to general damages to compensate for lost earnings due to her inability to model for the said period of time and which the company may deem it fit to deduct from her earning. I, therefore, would advise Cheryl to make a claim for damages against Donna so as to receive the compensation and for Donna to receive punitive measures if found guilty of any wrongful conduct. However, I would advise her to be cautious of the evidences that may be raised by the defence where they could argue that the defendant (Donna) had not reasonably foreseen that somebody might be hurt by his actions, hence he is not liable for the loss and injury suffered by Cheryl. In the light of this possible defence, I would advise her to not only relate the incident to her injury and loss but also because the defendant was not exercising caution while driving especially considering that he was driving in a street that has obviously numerous pedestrians and other road users. He is therefore, liable to the loss and injury in the sense that he was negligent and was ignoring basic rules of driving and common sense that guides drivers in busy streets.31 In regard to David, he is also entitled to damages even though minimal. Due to her friend Cheryl inability to drive, they were not able to attend Coldplay concert that night. They had already paid money on the tickets and that meant that their failure to attend resulted to loss of money paid on the tickets. Legally, he is entitled to special damages to reimburse the lost money. However, it would be uneconomical and time- consuming to make a claim for damages considering that the money lost on the concert’s tickets could not be much and the cost of legal fees for such a case could actually be higher than the amount sought to be reimbursed. Besides, the defence lawyer may question if the plaintiff is guided by the principle of proximity cause since the case has a very remote relation to the cause of the loss.32 Therefore, I would advice David not to make any claim for damages arising from their scenario. Lastly, in advising Bellisima company, I would suggest to them that indeed they are entitled to damages since they suffered loss because of one of their ‘employees’ injury caused by a different person due to the person’s negligence and wrongful conduct.33 The injury sustained by Cheryl was due to Donna’s negligence of basic driving rules that demands for cautious driving especially along the streets. The injury made Lizzie not to model for a week because her face condition could not allow her to model. Injury sustained by Cheryl was on a visible part of the body and would definitely affect her beauty which is essential in modelling.34 So she had to delay modelling for a week to allow her to face to get back to normal; the delay resulted to Bellisima Company, where she is contracted to lose ?500,000 in booking and retention fees. They are therefore entitled to special damages in order to reimburse the losses incurred. I would advise the company to make a claim for damages against Donna. However, I would caution the company to consider their contract with Cheryl to ensure that their loss is actually caused by a third party interference with their employees in order to meet the proximity cause threshold and avoid counter claims.35 Bibliography Barrie, P, Personal Injury Law: Liability, Compensation, and Procedure, 2nd Ed., Oxford University Press, London, 2005. Behand, N, How To Run Your Own Court Case, Redfern Legal Centre, Sydney, 2009, p. 145. 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