Civil Litigation: Personal Injury Practice and Procedure - Essay Example

? Civil Litigation Case Personal Injury Practice and Procedure The law on the practice and procedure for personal injury claimsis usually complex and tedious. This is because personal injury cases require concrete evidence to be tabled and intense negotiations between both parties involved in the case. The law is clear on the required procedure to be followed in handling personal injury claims. The solicitors of both parties can agree on the nature and amount of compensation to be made and the case is settled out of court. The essence of this alternative dispute resolution mechanism is time and cost saving. It saves the aggrieved party of waiting for a long trial before gaining any compensation and also saves the defendant from inflated costs in case the ruling is to their disadvantage. In this case, the material facts are: 1. The motorcyclist suffered personal injuries by sustaining whiplash, a broken leg and a broken nose. 2. You do not have valid insurance to drive the car involved in the accident. 3. You have already been charged in a court of law for careless driving. It is also important to recognize that having been found guilty of careless driving, the court must have upheld one or more of the following elements of the provisions of Road Traffic Act 1988 Section 3: 1. If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence. 2. A person is to be regarded as driving without due care and attention specifically if he fails o exhibit competence and care. 3. In order to determine the purposes of what shall constitute subsection (2) above of what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. 4. Other persons must be inconvenienced by the driving of a person for that person is to be regarded as driving without reasonable consideration for other persons. Procedure for Pre-action Protocol for Personal Injury Claims. 1. Early Notification The guidelines allow for a early notification of intent to file a claim to the defendant as soon as the legal representative feel that a personal injury claim is to be pursued. In your case, the letter from Mr Donnels’ Solicitors (A& T) amounts to early notification according to the guidelines. The early notification does not necessary have to be detailed as the costs of the claim may not be crystal clear at this stage. However, you are not under any obligation to respond to this notification as it does not start the timetable for responding. At this stage, it would be wise to explore the likelihood of having to pay any legal claims that may arise relating to the personal injuries suffered by Mr. Donells. The possibilities at this stage is that the solicitors representing Mr. Donells are in all likelihood going to pursue personal injury claims against you and therefore early preparation is essential. 2. Letter of Claim If the solicitors for Mr Daniells choose to pursue personal injury claims, the next course of action will be sending you a letter of claim. The letter of claim is usually sent to the client’s insure for cases involving road accidents. However, the facts point out that you did not to enable you drive as at the occurrence of the accident. This means that the claim will be solely directly at you and you will be responsible for any financial interests arising from the claims. The letter of claim provides sufficient information for the defendant to assess the liability. Usually, it will include the full details of the hospital where the claimant was treated. This information is important in its entirety to help you estimate the size of the claim. The letter of claim that may be issued should have a clear summary of facts of the accident indicating the nature of injuries and the financial losses on the claimant. You will be required to reply within 21 days seeking clarification on issues that may have been omitted. It should be understood that failure to respond to the letter of claim within 21 days of its receipt will open doors for the claimant to issue proceedings. Once the letter of claim has been accepted, you will have three months to investigate and give a response to the claim before any legal proceedings can start. No further investigation on liability can be carried out concerning the case until the defendant gives a response indicating an acceptance or dispute of liability. 3. Calculation of Compensation The amount of damages to be paid is normally computed as a product of the average expected annual loss and a multiplier. In personal injury cases, the multiplier has to reflect the expected rate of interest at which the interest is to be calculated and the time horizon that the losses are expected to last. The formula for determining the damages to be paid in personal injury can be summarized as follows: D= A * M Where D is the lumpsum of Damages A is the annual loss expected before tax M is the multiplier The factors to determine the annual expected loss by Mr Donnells will depend on the extent of injuries that he will suffer from. Also, the job and income that the claimant earned before the accident will be factored in since the injuries suffered may make it impossible for him to resume normal duties. However, the recent trend has been in favour of structured payments instead of lump sums. The beauty of the structured payments is that they take the form of bundled annuities rather than a one time payments. This may result in significant savings on costs for you. The letter of claim that may be issued should have a clear summary of facts of the accident indicating the nature of injuries and the financial losses on the claimant. You will be required to reply within 21 days seeking clarification on issues that may have been omitted. It should be understood that failure to respond to the letter of claim within 21 days of its receipt will open doors for the claimant to issue proceedings. Recommendations Personal Injury Case It would be advisable to conduct a background investigation the claimant so as to have n estimate of the likely value of the claim. This is because you did not have insurance for the car and hence the financial burden of the claim will fall on you. Also, you should make arrangements with Mr. Donell’s solicitors (A&T) to seek alternative dispute resolution. A court case on this matter will likely be in the claimant’s favour since you have already been charged with careless driving. Hence, if they pursue a court case, you will spend money on the court case and most likely pay a higher claim. Court case on careless driving The legal case as pertains to this case is whether you are culpable to pay claims of personal injury sustained by the defendant due to the perceived careless driving on your part. The law is very clear on what amounts to careless driving and the elements that comprise careless driving. One of the elements that must be satisfied for a personal to be considered guilty of the offence of careless driving, there has to be evidence that the said driver was driving in a public place or on a road without exercising care or competence and in a manner that is not in consideration of the interests of other road users. From the material facts of the case, there is no indication that you endangered the interests of other road users. The point here is to analyze whether by using his phone you did not exercise caution and competence hence leading to the accident. There is no evidence to satisfy this element of the law. In fact, if this element of law is applied fully, then it can be argued that the motorcyclist is the careless driver. By entering the main road at a high speed from the side way, he was putting the lives of other road users at risk. The other issue that may lay the blame squarely on the motor cyclist is that fact that he had no protective headgear during the accident. If the motor cyclist did not value his life by failing to wear a helmet, would he be any considerate for other road users? The second element of the law under consideration is the statement that a person is to be regarded as driving without due care and attention specifically the conduct exhibits lack of competence or careful driving. In this scenario, it would be appropriate to think of what a reasonable driver would do. We are not told that you were over speeding or driving in any other manner that is inappropriate. Therefore, as per the facts adduced there is nothing outright to show that it was something unreasonable or incompetent. Once again, it should be noted that using a phone while driving is not in any way an aspect that can be used to indicate that you were driving in a way that lacks competence or even care. Further, it is not indicated clearly the manner in which you were using the phone. The absence of proper accounting on how the phone was being used shows nothing out of the ordinary that may warrant prosecution. In the case Broom v Cassel [1990] AC 1027 the court was presented with a case of alleged careless driving. The defendant was in conversation with the passengers in his car and the resulting accident was blamed driver. The prosecution pointed to section 3 of the Road Traffic Act 1988 by arguing that the behavior of the driver was inconsistent with that expected of a careful and competent driver. The court had to rule on the issue whether talking to passengers was below what is expected of a careful and competent driver. In its ruling, the court indicated that talking to passengers or any other person is not inconsistent with anticipations. The court further ruled that ruled that it is natural and expected for human beings to communicate and therefore the case was thrown out. From this case, it is imperative that merely talking on the phone is a form of communication and therefore cannot be in itself condemned as an act of carelessness. The issue here is that the law recognizes the unalienable right to communication that is bestowed upon every individual. Exercising this right therefore is consistent with the expectations of a reasonable person. The case does not hold ground since there is no indication that the behavior falls below that which is expected of a reasonable driver. On the other hand, the behavior of the motorcyclist can be said to fall below the expectations of a competent driver. It is an act of incompetence and lack of caution for the motorcyclist to cycle at night without putting on a helmet as a safety measure to protect him from harm’s way should an accident occur. Also, a careful driver would slow down in such a case. Hence, the motor cyclists may be deemed to have contravened the section 3 of the Road Traffic Act. Further to this element, the third aspect of the law states that the driver may be held culpable not only for the circumstances he should be aware of but also the scope of knowledge that should be within the defendant’s realm. This implies that ignorance of matters that are otherwise within the real of knowledge of the accused can not be upheld as grounds for defense. As previously shown, your action was not inconsistent with the expected actions of a careful and competent driver. It is also clear that you were aware of vehicles entering the main road from the side way otherwise he would have hit the motor cyclist head on. Hence, the threshold for prosecution under this element is not sufficiently met. The motorcyclist should have been aware of vehicles using the main road and therefore approach the entry at a low speed. Consistently with the previous element, the motor cyclist was on the wrong. According to the application of the law to the material, there is no strong case against you. There is no strong basis to prosecute you on the ground of careless driving. The liability of the case may actually lie on the motor cyclist. The motor cyclist is culpable of a case on careless driving since his actions are below what we expect of a careful and competent driver. He drives at night without a helmet and enters the main road at a high speed. Therefore you should consider appealing against the ruling of the court where he was found guilty of careless driving. The grounds for this appeal should cite lack of any direct link between the use of the phone and carelessness as required by law. You should also consider suing the motor cyclists or carelessness as pointed in the evaluation of the case. Case 2: Amy v Chase Offer under Part 36 Of The Civil Procedure Rule. Dear Amy, Part 36 of the Civil Procedure Rule was introduced to encourage the settlement of litigations by use of financial initiatives. Imperatively, a Part 36 offer is a settlement offer made without prejudice saves as to costs. This kind of settlement helps to put pressure on the other party of the litigation to settle the case and to protect the case from any undesired eventuality. For a Part 36 offer to be valid, it must be in compliance with the provisions set out in the Civil Procedure Rule 36. The offer must be in writing and state that it is intended to have the cost implications as set out in the Part 36 of the cost consequences. The offer must also specify the validity period which is usually not less than 21 days. For the Part 36 offer to be valid, it must specify the portion of the claim it is intended to cover and the whether or not it takes into account any counterclaim that may arise. An offer for a money claim should be payable within fourteen days of acceptance of the offer. The offer that has been made by Mr. Chase is a global offer which means it covers all the issues in the case. It is also notable that the Part 36 offer has been made after the case has already started. The offer sufficiently covers the costs already incurred in the case and can as well cover the projected costs of the entire case. In considering whether to accept the offer or not, the validity period is of critical importance. The second day after the offer is served is considered the official first day of the validity of the offer. Therefore, it is prudent to consider the number of days that have elapsed since the order was served. In order to obtain the best offer possible, it is advisable for the offerer to give further information that clarifies the nature of the offer given. Therefore, you should write to Mr. Chase to seek clarification on the offer given. The regulations provide that a request for clarification should be made in writing within seven days of receipt of the offer. Mr. Chase is under legal obligation to offer the clarification failure to which the court can order him to do so. Usually, an offer is made to the advantage of the defendant. From the information available, Mr. Chase has made a generous offer that has a lot of money as excess after all the costs have been covered. Therefore, it is advisable to go through the facts of the case and evaluate whether the final ruling might be more advantageous. Mr. Chase may have realized that there is a high probability the case may not be ruled in his favour and the court may award a significantly higher sum. Therefore, an independent legal opinion on the case will shed more light on the possible directions the case might take. This is important to ensure that an objective decision is made concerning the offer. A part 36 offer may be accepted at any time. Hence, it is advisable to let the case proceed and weigh the options as time goes by. In fact, by letting the case go on, you will be giving yourself an opportunity to increase the offer should Mr. Chase realize that he will lose the case and suffer heavier penalties. However, dragging on the case might result in the withdrawal of the offer hence a long and bruising battle to the end of the trial. In deciding whether to let the case drag on, you will have to consider if there is sufficient money to cover the costs of the case in its entirety. The implications of accepting a Part 36 offer are outlined in the Civil Procedure Rules. The acceptance of the offer must be in writing and within the period of validity. In this case, an acceptance of the offer will mean that that you will receive a sum of twelve thousand pounds. It should be noted that the Part 36 should not be brought to light until all the outstanding issues of liability and quantum have been resolved. An acceptance of the offer by Mr. Chase may not need court’s permission since it covers all the claims in the case. Once the offer has been accepted, Mr. Chase will have to pay the entire sum in the offer within fourteen days. Besides, a judgment may be entered to seek redress on the matter of payment. It should be noted that a similar case may not be brought to any court again. The settlement is deemed to be final and binding: regardless of the course the court proceedings might have taken. It is vital to analyze the offer given and take time to weigh if Mr. Chase may make another offer that is better. Failure to accept an offer or silence does not close the opportunity for a different offer to be made. Refusal to accept the offer has eventual cost implications. This is especially true in instances whereby the final judgment might be less advantageous than the offer that was made. Once an offer has been refused and the court issues a judgment, the parties cannot go back to the offer made. Hence, the decision to accept or not accept the offer should be weighed carefully. Yours Faithfully. Smith & Klein Attorneys Bibliography Butler, J. (2008). The Law of Settlements. New York. McGraw Hill. Burrows, A.S.,,Edelman, J.,(2007). Cases and Materials on the Law Of Settlement. Oxford. Oxford University Press. Buxton, A.S., (2002). Civil Litigation Procedure. London. Butterworths Publishers. Charles, C.J, Mitchel, K. (2005). Landmark Cases in The Law of Settlement. London. Addison- Wesley. Hanokh, P., (2004). Civil Litigation Case Analysis. London. MacMillan Publishers. Norris, W., Ritchie Andrew., et al. (2005) Kemp & Kemp: Personal Injury Law, Practice and Procedure. London. Sweet and Maxwell Read More