Analysis of Marshall versus Scott Case - Essay Example

? Marshall v. Scott Case Table of Contents Case Marshall V Scott 2 Introduction 3 The case involves a personal injury claim after a motor vehicle accident. Marshall whose motor bike hit Scott’s car sustained injuries that included a broken leg, a broken nose and whiplash. He also lost two teeth. As a result he claims damages for personal injury against Mr. Scott. When the accident occurred, Mr. Scott was holding a telephone conversation while driving. Scott was still on phone when Mr. Marshall came out of Caldwell road which was a side road of the main road that Mr. Scott was driving on. He rammed into Mr. Scott’s vehicle on the passenger’s side. According to the police reports, Mr. Marshall was not wearing a helmet as per the traffic regulations. Mr. Scott on the other hand though drunk, his status was not beyond the legal alcohol limit. However, he was charged and found guilty of a traffic offence as he was talking over the phone while driving contrary to section 3 of the Road Traffic Act. Mr. Marshall sued Mr. Scott for the injuries sustained. The aim of this report to is determine if Mr. Scott is liable to pay damages to Mr. Marshall and what possible defenses he could actually rely on to escape liability. 3 Issues and Law 3 The first issue that arises in this case is the need to determine whether Mr. Scott is guilty of careless driving under section 3 of the Road Traffic Act and if this would necessarily prejudice his civil liability. In this regard, the proceedings under Road Traffic Act do not prejudice his civil case. According to Keenan (2011, p. 53), the outcome of a criminal action does not affect the outcome of civil case. The next issue in this case is the issue of liability. The question is whether Mr. Scott was liable to pay any damages to Mr. Marshall for the injuries sustained. Sustaining injuries in an accident does not give one an automatic right to recover damages. The question to be determined is which party was liable for the accident. One party may be fully liable or both parties might be liable meaning that each party is partially liable. The person claiming damages for personal injury after a motor vehicle accident has to prove that the other party was negligent. This means that Mr. Marshall has to prove beyond reasonable doubt that whatever damage that resulted from the accident was wholly or partially the fault of Mr. Scott. 4 In this case, one of the initial things to be determined is whether Scott was negligent. Under the law of torts, Howarth (2006, p. 147) indicates that a person is negligent when he or she is in breach of the legal duty of care that brings damage to the claimant. Negligence as per Alderson B in the case of Blyth v Birmingham Water Works constitutes omission by a reasonable person who guided by ordinary consideration fails to do something and as a result causes injury to another person. The same principle of the tort of negligence applies to the motor vehicle accident. Liability in this respect is determined on the basis of the negligent party. Under the law of torts, there are three requirements that need to be fulfilled. The first requirement that needs to be fulfilled for a claim to succeed is that the party claiming negligence needs to establish a duty of care (Smith, 1983, p. 44). 4 In light of the case, Marshall needs to establish that Scott owed him a duty of care. As a general rule, any one driving on a public road has a duty to the public and where one chooses to drive, they should be able to control the motor vehicle so that it does not harm other people. In the instant case, Mr. Scott by virtue of driving on a public road had a duty to control it to ensure that any person on the same road was not hurt. Even if it was the fault of the other party Mr. Scott should have taken all the reasonable measure to control the happening of the accident. This is to his disadvantage. However the other party too being a public road user is burdened with the same duty of care to ensure that he controls the motor cycle to avoid harming any other user of a public road. At this point, Scott could deny owing Marshall such duty of care as he was already on the main road and it was Marshall who was supposed to look out before entering the main road. However, the fact that he was talking on the cell phone while driving could prejudice this claim. Secondly, the tort of negligence requires that after establishing the duty of care, the claimant needs to show that the defendant was in breach of this duty. Under the personal injury claims, one breaches the duty of care when he fails to prevent the occurrence of the accident (Harpwood, 2009, p. 176). The last requirement that needs to be fulfilled under the tort of negligence is the establishment of injury resulting after the breach of duty of care owed to the claimant. In this case, Marshall sustained injuries which could sufficiently be found from a medical report. Thus if Marshall could establish the duty of care and the breach of that duty of care, he would win his claim against Scott. Since Scott was talking on the phone while driving, the claim for breach of duty of care was likely to succeed. 5 Under the traffic rules, every driver owes another the duty of care as any wrong brings reasonably foreseeable consequences. Harpwood (2009, p. 176) indicates that this was established in the case of Jolly v Sutton. It is impossible for Scott to claim that he did not owe Marshall any duty of care or that he did not breach the duty of care. In simpler terms, there is no way Scott can escape liability fully. However, Mr. Scott can claim partial liability. In the United Kingdom the law on contributory negligence is found on the Law Reform Act (Contributory Negligence Act) of 1945. Under this Act the damages are apportioned on the basis of the percentage of the fault. Contributory negligence is not an absolute defense and does not absorb one fully from blame. Section 1 of the Law Reform Contributory negligence act provides 6 “………… Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable…………” 6 From the wording of the statute it can thus be inferred that contributory negligence as a defense is not an absolute defense. In this regard Mr. Scott cannot fully be absorbed from liability on the defense contributory negligence. The result is that the damages are apportioned on the two parties at fault. In this respect, he would argue that the claimant was also partially responsible for the accident that occurred and as such, the blame should be shouldered by both parties involved. In this case, Mr. Marshall, who was on the roadside rammed into Mr. Scott’s car which was on the main road. This exhibits some degree of carelessness on his part that could help him reduce liability. The last option available to Mr. Scott, and which is seemingly the best, is to counterclaim. This is where Mr. Scott claims that in fact he is the one that has a claim against the claimant. However this option has no chances as it requires Mr. Scott to prove negligence on the claimant’s part. The third requirement for negligence, that the breach of duty has to result to damage cannot however be fulfilled. This is because from the facts of the case, it is certain that Mr. Scott suffered only a few bruises which cannot qualify as damages. 7 In the United Kingdom, insurance is compulsory for all road traffic accidents. As such, it is important that Mr. Scott confides with the lawyers if he has complied with this requirement or not. Even with the insurance cover it is important to note that there is some limitation with the indemnity for personal injury claims. The Road Traffic Act of United Kingdom for example provides that the unlimited cover where the personal injury claim does not exceed pounds 250,000. This is with the exception of the driver responsible for the accident. The injuries sustained by Mr. Marshall are not serious thus their estimated quantum of damages is pounds 7,000. If Mr. Scott has complied with the insurance requirement then he would pay nothing to Mr. Marshal as the insurance cover for such minor injuries is unlimited. Though the law states that insurance cover is compulsory it should be noted that this is very difficult to enforce and there is likelihood that Mr. Scoot may not have the insured the vehicle. In this regard Mr. Scoot needs to be open with the lawyer so that they may be able to offer the best advice. The plaintiff may not be paid by the insurance company where the defendant had omitted the insurance cover. It is important for Mr. Scoot to know that where personal injury was as a result of an accident any judgment will be satisfied by the Motor Insurers’ Bureau where the defendant was not insured, as long as the proceedings were forwarded within seven days of starting of proceedings. 8 Mr. Scott should also be aware of the Cost that he will incur. First and foremost he should know that whatever percentage of liability that he shoulders will be on special damages for example expenditure on the medical report which is estimated at 35 pounds. However since this is special damages which are specific the claimant has to furnish the evidence of the medical report. The other cost is for general damages. The quantum of damages is calculated on the severity of the case and considering that the injuries in this case were not severe they be estimated to pound 7,000 which is open for negotiation. The legal fees are calculated on the subject matter. However it is different where the case goes to court on failure of an out of court proceedings. The legal fees charged to Mr. scoot is pound 1, 000 if the matter is successfully settled out of court however if the matter is goes to court the legal fees charged to Mr. scoot is pound 1500. 9 Conclusion and Recommendations 9 Acting for Mr. Scott, the appropriate action after receiving the demand letter from the other party would be to reply to the letter denying liability and without prejudice claiming contributory negligence on the part of the claimant. Without prejudice, I would seek for an out of court settlement on behalf of Mr. Scott accepting only 50 % liability. This would be a reasonable amount to start with considering that the only offence committed by Mr. Marshall was the fact that he was not wearing a helmet. This amount is however just a tip to open the negotiations. It is also important to investigate if any third party insurance cover taken by Mr. Scott was viable or not. In this case, if Mr. Scott had a viable third party insurance cover, he would not have to apply for the damages himself. In this respect, I would write back requiring the claimant to contact the insurance company. The documents needed are the police report, the medical report and any criminal proceeding against Mr. Marshall. 10 It is important for Mr. Scott to know that the outcome of the criminal case will not prejudice his civil case. However, the police report that he was talking on the cell phone while driving will be enough evidence that he was negligent and as such has breached the duty of care he owed other road users and particularly Mr. Marshall (Harpwood, 2009, p. 177). The idea of proving that he did not owe Mr. Marshall any duty of care is not a very reliable option as from the evidence, it is almost obvious that he was negligent. The only option left for Mr. Scott is to prove that he was not fully responsible for the accident and that the victim was also partially responsible for the injuries he sustained. The other option which does not seem very attractive is to counter claim that it was indeed the claimant who owed him. 10 Unfortunately, Mr. Scott did not sustain any injuries. Because of this, the test for negligence by the claimant cannot be considered as the third option. According to Howarth (2006, p. 451), the principle of the tort of negligence requires that damages occur as a result of the breach of duty of care. While claiming contributory negligence, Mr. Scott should also be trying an out of court settlement. This in most instances is attractive as it saves on the litigation cost. In conclusion it is important to note that Mr. Scott should try to narrow down the percentage of his liability as much as possible as the negotiations kick off. 11 Case 2: Ms. Sonny v Mr. Cher 12 Latter to Ms. Sony advising her of the offer, and the implications of the offer 12 Case 1: Marshall V Scott Introduction The case involves a personal injury claim after a motor vehicle accident. Marshall whose motor bike hit Scott’s car sustained injuries that included a broken leg, a broken nose and whiplash. He also lost two teeth. As a result he claims damages for personal injury against Mr. Scott. When the accident occurred, Mr. Scott was holding a telephone conversation while driving. Scott was still on phone when Mr. Marshall came out of Caldwell road which was a side road of the main road that Mr. Scott was driving on. He rammed into Mr. Scott’s vehicle on the passenger’s side. According to the police reports, Mr. Marshall was not wearing a helmet as per the traffic regulations. Mr. Scott on the other hand though drunk, his status was not beyond the legal alcohol limit. However, he was charged and found guilty of a traffic offence as he was talking over the phone while driving contrary to section 3 of the Road Traffic Act. Mr. Marshall sued Mr. Scott for the injuries sustained. The aim of this report to is determine if Mr. Scott is liable to pay damages to Mr. Marshall and what possible defenses he could actually rely on to escape liability. Issues and Law The first issue that arises in this case is the need to determine whether Mr. Scott is guilty of careless driving under section 3 of the Road Traffic Act and if this would necessarily prejudice his civil liability. In this regard, the proceedings under Road Traffic Act do not prejudice his civil case. According to Keenan (2011, p. 53), the outcome of a criminal action does not affect the outcome of civil case. The next issue in this case is the issue of liability. The question is whether Mr. Scott was liable to pay any damages to Mr. Marshall for the injuries sustained. Sustaining injuries in an accident does not give one an automatic right to recover damages. The question to be determined is which party was liable for the accident. One party may be fully liable or both parties might be liable meaning that each party is partially liable. The person claiming damages for personal injury after a motor vehicle accident has to prove that the other party was negligent. This means that Mr. Marshall has to prove beyond reasonable doubt that whatever damage that resulted from the accident was wholly or partially the fault of Mr. Scott. In this case, one of the initial things to be determined is whether Scott was negligent. Under the law of torts, Howarth (2006, p. 147) indicates that a person is negligent when he or she is in breach of the legal duty of care that brings damage to the claimant. Negligence as per Alderson B in the case of Blyth v Birmingham Water Works constitutes omission by a reasonable person who guided by ordinary consideration fails to do something and as a result causes injury to another person. The same principle of the tort of negligence applies to the motor vehicle accident. Liability in this respect is determined on the basis of the negligent party. Under the law of torts, there are three requirements that need to be fulfilled. The first requirement that needs to be fulfilled for a claim to succeed is that the party claiming negligence needs to establish a duty of care (Smith, 1983, p. 44). In light of the case, Marshall needs to establish that Scott owed him a duty of care. As a general rule, any one driving on a public road has a duty to the public and where one chooses to drive, they should be able to control the motor vehicle so that it does not harm other people. In the instant case, Mr. Scott by virtue of driving on a public road had a duty to control it to ensure that any person on the same road was not hurt. Even if it was the fault of the other party Mr. Scott should have taken all the reasonable measure to control the happening of the accident. This is to his disadvantage. However the other party too being a public road user is burdened with the same duty of care to ensure that he controls the motor cycle to avoid harming any other user of a public road. At this point, Scott could deny owing Marshall such duty of care as he was already on the main road and it was Marshall who was supposed to look out before entering the main road. However, the fact that he was talking on the cell phone while driving could prejudice this claim. Secondly, the tort of negligence requires that after establishing the duty of care, the claimant needs to show that the defendant was in breach of this duty. Under the personal injury claims, one breaches the duty of care when he fails to prevent the occurrence of the accident (Harpwood, 2009, p. 176). The last requirement that needs to be fulfilled under the tort of negligence is the establishment of injury resulting after the breach of duty of care owed to the claimant. In this case, Marshall sustained injuries which could sufficiently be found from a medical report. Thus if Marshall could establish the duty of care and the breach of that duty of care, he would win his claim against Scott. Since Scott was talking on the phone while driving, the claim for breach of duty of care was likely to succeed. Under the traffic rules, every driver owes another the duty of care as any wrong brings reasonably foreseeable consequences. Harpwood (2009, p. 176) indicates that this was established in the case of Jolly v Sutton. It is impossible for Scott to claim that he did not owe Marshall any duty of care or that he did not breach the duty of care. In simpler terms, there is no way Scott can escape liability fully. However, Mr. Scott can claim partial liability. In the United Kingdom the law on contributory negligence is found on the Law Reform Act (Contributory Negligence Act) of 1945. Under this Act the damages are apportioned on the basis of the percentage of the fault. Contributory negligence is not an absolute defense and does not absorb one fully from blame. Section 1 of the Law Reform Contributory negligence act provides “………… Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable…………” From the wording of the statute it can thus be inferred that contributory negligence as a defense is not an absolute defense. In this regard Mr. Scott cannot fully be absorbed from liability on the defense contributory negligence. The result is that the damages are apportioned on the two parties at fault. In this respect, he would argue that the claimant was also partially responsible for the accident that occurred and as such, the blame should be shouldered by both parties involved. In this case, Mr. Marshall, who was on the roadside rammed into Mr. Scott’s car which was on the main road. This exhibits some degree of carelessness on his part that could help him reduce liability. The last option available to Mr. Scott, and which is seemingly the best, is to counterclaim. This is where Mr. Scott claims that in fact he is the one that has a claim against the claimant. However this option has no chances as it requires Mr. Scott to prove negligence on the claimant’s part. The third requirement for negligence, that the breach of duty has to result to damage cannot however be fulfilled. This is because from the facts of the case, it is certain that Mr. Scott suffered only a few bruises which cannot qualify as damages. In the United Kingdom, insurance is compulsory for all road traffic accidents. As such, it is important that Mr. Scott confides with the lawyers if he has complied with this requirement or not. Even with the insurance cover it is important to note that there is some limitation with the indemnity for personal injury claims. The Road Traffic Act of United Kingdom for example provides that the unlimited cover where the personal injury claim does not exceed pounds 250,000. This is with the exception of the driver responsible for the accident. The injuries sustained by Mr. Marshall are not serious thus their estimated quantum of damages is pounds 7,000. If Mr. Scott has complied with the insurance requirement then he would pay nothing to Mr. Marshal as the insurance cover for such minor injuries is unlimited. Though the law states that insurance cover is compulsory it should be noted that this is very difficult to enforce and there is likelihood that Mr. Scoot may not have the insured the vehicle. In this regard Mr. Scoot needs to be open with the lawyer so that they may be able to offer the best advice. The plaintiff may not be paid by the insurance company where the defendant had omitted the insurance cover. It is important for Mr. Scoot to know that where personal injury was as a result of an accident any judgment will be satisfied by the Motor Insurers’ Bureau where the defendant was not insured, as long as the proceedings were forwarded within seven days of starting of proceedings. Mr. Scott should also be aware of the Cost that he will incur. First and foremost he should know that whatever percentage of liability that he shoulders will be on special damages for example expenditure on the medical report which is estimated at 35 pounds. However since this is special damages which are specific the claimant has to furnish the evidence of the medical report. The other cost is for general damages. The quantum of damages is calculated on the severity of the case and considering that the injuries in this case were not severe they be estimated to pound 7,000 which is open for negotiation. The legal fees are calculated on the subject matter. However it is different where the case goes to court on failure of an out of court proceedings. The legal fees charged to Mr. scoot is pound 1, 000 if the matter is successfully settled out of court however if the matter is goes to court the legal fees charged to Mr. scoot is pound 1500. Conclusion and Recommendations Acting for Mr. Scott, the appropriate action after receiving the demand letter from the other party would be to reply to the letter denying liability and without prejudice claiming contributory negligence on the part of the claimant. Without prejudice, I would seek for an out of court settlement on behalf of Mr. Scott accepting only 50 % liability. This would be a reasonable amount to start with considering that the only offence committed by Mr. Marshall was the fact that he was not wearing a helmet. This amount is however just a tip to open the negotiations. It is also important to investigate if any third party insurance cover taken by Mr. Scott was viable or not. In this case, if Mr. Scott had a viable third party insurance cover, he would not have to apply for the damages himself. In this respect, I would write back requiring the claimant to contact the insurance company. The documents needed are the police report, the medical report and any criminal proceeding against Mr. Marshall. It is important for Mr. Scott to know that the outcome of the criminal case will not prejudice his civil case. However, the police report that he was talking on the cell phone while driving will be enough evidence that he was negligent and as such has breached the duty of care he owed other road users and particularly Mr. Marshall (Harpwood, 2009, p. 177). The idea of proving that he did not owe Mr. Marshall any duty of care is not a very reliable option as from the evidence, it is almost obvious that he was negligent. The only option left for Mr. Scott is to prove that he was not fully responsible for the accident and that the victim was also partially responsible for the injuries he sustained. The other option which does not seem very attractive is to counter claim that it was indeed the claimant who owed him. Unfortunately, Mr. Scott did not sustain any injuries. Because of this, the test for negligence by the claimant cannot be considered as the third option. According to Howarth (2006, p. 451), the principle of the tort of negligence requires that damages occur as a result of the breach of duty of care. While claiming contributory negligence, Mr. Scott should also be trying an out of court settlement. This in most instances is attractive as it saves on the litigation cost. In conclusion it is important to note that Mr. Scott should try to narrow down the percentage of his liability as much as possible as the negotiations kick off. Case 2: Ms. Sonny v Mr. Cher Latter to Ms. Sony advising her of the offer, and the implications of the offer Ms. Sonny, you are the plaintiff in this case as you had sued Mr. Cher. Mr. Cher being the defendant made an offer for an out of court settlement. The trial date was set for the 16th June of 2012 and the offer was made on the 22nd February of 2012. The offer made amounted to 12,000 pounds whereas at the date of the offer the cost for the case was 4,300 pounds. The expected cost of the suit at the time of trial would be 8500 pounds. The issues arising here is whether you should take the offer and the legal implications of acceptance or non-acceptance of the offer. The main issues to be determined however pertain to whether the offer complies with part 36 of the Civil Procedure Rules. All these must be considered before arriving at any conclusion. To inform you about the law; Part 36 was introduced in the English Civil Procedure Rules purposely to encourage out of court settlements and narrow down the burden of courts. Before accepting the offer made under part 36, it is important to consider how much a party is saving on the cost of litigation and how much one stands to gain by accepting the offer. However, contractual principles do not apply to offer settlements made under part 36. According to the United Kingdom civil procedure rule amendment no.2 (S1 2011/1979) is regardless of whether they are made before or after the proceedings. An offer under part 36 must be made in writing and must state a time limit. This is usually twenty one days or more, within which defendant will be held liable to pay the claimant cost (Smith, 1983, p. 151). A part 36 offer may not retain the part 36 consequences if made within 21 days of trial. The provided period is important for the two main purposes. The first importance of the relevant period relates to the cost consequences when the offer is accepted. In this regard, the defendant would be liable for the plaintiff’s cost which was incurred until the end of the relevant period. If the offer is accepted after the date of the relevant period, the party to whom the offer is made is liable to pay the cost from the date of expiry to the date of acceptance. The second importance for late acceptance is about the consequences of cost on non-acceptance. These cost consequences for non-acceptance start running from the expiry period. As an example, if the relevant period is twenty one days and the plaintiff P accepts the offer within the 21 days, P is entitled to the cost of the suit up to the end of the relevant period. Where the plaintiff fails to recover on judgment a sum that is more than what was offered by the defendant, the consequences are that the defendant is able to recover from the claimant a reasonable cost of legal fees from the date of expiry of the relevant period. Looking into the facts provided, it is important for you to know the cost and consequences that you face if you accept or reject the offer made. First, she should be aware of the expiry of the relevant period. If you accept the offer before the expiry of the relevant period, you are entitled to recovery of the cost of the suit up the date of the offer. You should know the consequences of non-acceptance of the offer. In particular, you should know that if you do not accept the offer of 12,000 pounds and fail to obtain a judgment that is more advantageous than the offer, you are liable under part 36 of the Civil Procedure Rules to pay the defendants cost for the suit. So you should know that if you accept the offer within the relevant period that Mr. Cher gave, you will pay the cost of the suit up to the date of acceptance which will be pounds 4,300. However any cost incurred after this period will be settled by him. An estimate of the cost of the suit at the start of the trial will be 8,500 pound. This projects a very expensive cost and to avoid the cost it is important you consider an out of court settlement. List of References Harpwood, V 2009, Modern Law of torts, USA, Taylor and Francis Howarth, D 2006, A Duty of Care for personal injury claims, Notes from the Underground, OJLS, 449–472. Keenan S 2011, Smith and Keenan's English law. London: Longman Publishers. Smith B 1983, Donoghue v Stevenson—The Not So Golden Anniversary, MLR, 46.1, 147 United Kingdom Road Traffic Act of 1988 Section 3 United Kingdom Civil Procedures Rule Amendment no.2 (S1 2011/1979 Read More