Report and Letter Concerning Law - Case Study Example

 Report and Letter Concerning Case Study The personal injury claim of Rose Smith is valid. There are several tort issues within this case. “Torts…include all wrongs of commission to rights in tangible matter, wrongs to rights in the body, life, liberty and security, and wrongs to rights in tangible property, its possession and exclusive control.”1 The situation was as follows: Rose Smith was driving her Ford Escort traveling east on A343 road. Mr. Ford, driver of the other car involved in the collision, was traveling the opposite direction. According to notes, Mr. Ford tried to overtake the line of cars in front of him, and in doing so, drove into the oncoming lane and collided with Ms. Smith’s car. Ms. Smith did not have vehicle insurance at the time of the accident and, consequentially, had been convicted on 12th July 2006 (two days prior to the date of the accident) of having no insurance according to section 143 of the Road Traffic Act of 1988. Ms. Smith suffered a broken left fibula and three cracked ribs. She was in pain for three months and was unable to go to work for four weeks. Ms. Smith turned 21 yesterday. First of all, Mr. Ford is liable for having been negligent to Ms. Smith. In the case of negligence, one must establish a duty of care. To define negligence is to realize that it is the following. It is: “[c]onduct that falls below the standards of behavior established by law for the protection of others against the unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.”2 Obviously, Mr. Ford’s conduct was well below standards established by law to protect others against risk of harm according to the rules of the road. Mr. Ford put Ms. Smith at unreasonable risk of harm. Mr. Ford, subsequentially, by diverting his vehicle from the proper direction on the road in front of him, did not act as a reasonably prudent person in making the choice to pass the cars that were ahead of him—solely for the purpose of overtaking the cars in front of him. To maintain negligence was a “cause of action,” there are four criteria which must be met: 1. “ [T]he defendant had a duty [or a promise to exercise care] to the plaintiff..[;] [2.] [T]he defendant breached that duty by failing to conform to the required standard of conduct..[;] [3.] [T]he defendant’s negligent conduct was the cause of harm to the plaintiff..[;] and [4.] [T]he plaintiff was, in fact, harmed or damaged.”3 As it concerns Mr. Ford, he first had an obligation to Ms. Smith that that he had the duty to her to be a responsible driver. He then breached such obligation to be a responsible driver by going into her lane just because he wanted to overtake the line of cars ahead of him. Mr. Ford’s third cause of action, that his conduct was harmful to Ms. Smith—as Ms. Smith consequentially broke her left fibula and was left with three cracked ribs—is an obvious factor, seeing as how the facts of the case prove this. Lastly, it is apparent that Ms. Smith was harmed in the accident. All of these aspects help prove further that Mr. Ford was negligent towards Ms. Smith. From having suffered this negligence, Ms. Smith has some recourse in presenting her case as a personal injury case in court. Ms. Smith could sue for pain and suffering incurred, which would include the “mental and emotional trauma which are recoverable as elements of damage in torts.”4 Mr. Ford would not be able to receive any monetary awards due to damages on his car. He would have no case, as he would be the defendant. Further, the fact that Ms. Smith was convicted of not having vehicle insurance two days prior to the accident does not have a bearing on her receiving benefits from this torts case. However, Mr. Ford is liable to Ms. Smith for having been the cause of Ms. Smith’s health problems and subsequent future pecuniary loss, as well as having responsibility for provisional damages and deduction of benefits. Ms. Smith could prove, in a court of law, that this was the case. This would include providing extensive documentation regarding her medical status, evidence that she had indeed broken her left fibula and cracked three ribs as the case stated. Testimony from Ms. Smith could include the details of the accident and what happened exactly. Additionally, some thought should be given as to what kind of defense Mr. Ford will come up with at trial, perhaps claiming that Ms. Smith is a reckless driver herself since she had not purchased insurance on her vehicle and yet insisted upon driving it. This could be a key factor in Mr. Ford’s defense strategy. In order to counteract that strategy, Ms. Smith must rely on her previous driving record, as well as character witnesses who will attest to Ms. Smith’s character. This could include family members, intimate friends, and other associates who can attest to her good faith efforts to be a responsible person. Although she may not have had vehicle insurance, the evidence presented in court towards Ms. Smith’s good character have the potential to positively affect the outcome of her case. Since Mr. Ford was a key player in the contribution of Ms. Smith’s subsequent problems, she should be remunerated accordingly. Since Mr. Ford is possibly liable for not having acted appropriately when he should have done so, he is in a situation that is probably loathe to him. Ms. Smith should ready herself to pursue this torts case. Mr. Ford, in the meantime, should consider hiring a solicitor. Precisely, the damages owed by Mr. Ford to Ms. Smith will be determined in a court of law. Mr. Ford was clearly at fault, and the Law Reform Act of 1945 states that “[Fault is . . .] negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort.”5 With regards to damages, in the case of Dixon v John Were [2004] EWHC 2273 (QB), the “claimant was seriously injured in a road traffic accident at the age of 20, when he was a university student. He suffered brain damage and a consequent personality disorder…”6 The multipliers which are used by the judge to determine how much money the claimant receives will depend on whether he is familiar with using those multipliers, as well as the fact whether or not he can rely on the tables being used to determine the multipliers. In some cases, there will be actuarial numbers or statistics in a table dictating how much a claimant should receive. However, some judges may defer to using their own experience in deciding how much a claimant should receive in the judgment. Additionally, this reserve to make a judgment based on experience is held by the estimation of the court, and not by any other authority. This overrides what the prevailing amounts in multiplicands and multipliers are. “[In some cases i]nsurers…[must] predict… the capital sum required to produce a given income stream for the life of the client, and in many cases--especially one particular case--judges were reticent to use multipliers with reference to tables…instead [depending on] their own experience in judging the evidence with regard to a specific plaintiff’s factors--rather than rely on actuarial tables.7 In essence, regarding this case, the insurance company of Ms. Smith must give a number that is adequate for which she will be able to receive medical treatment in the future and all impending costs. Ms. Smith should be awarded compensation relevant to the damages—physical, mental, emotional, and otherwise—that she has endured as a result of Mr. Ford’s folly. In sum, Mr. Ford should be asked to render Ms. Smith the appropriate damages by the court. Letter to Ms. Smith [969 words] Dear Ms. Smith, As you know, you are set to go to trial on 16th June of 2009. Nothing prevents the defendant in your case, Mr. Ford, from settling in whatever way he chooses. This includes making an offer at any time, including before the commencement of proceedings. Presently, as of 22nd February, I must inform you that Mr. Ford has made an offer under Part 36 of the Civil Procedure Rules. The offer is a global sum of 6,000 pounds. Currently, the cost being expended on your case—as you’re aware—is currently 2,300 pounds. It is estimated, however, that by the time of the trial, the costs being expended on your case will be in the neighborhood of 4,500 pounds. According to Part 36 of the Civil Procedure rules, Mr. Ford’s claim was, I am assuming, in writing. Additionally, it probably stated that it intends to have the consequences of Part 36. Further, there is a period of 21 days for which the defendant is liable for your costs as a claimant if the offer is accepted. This statute applies because the offer is not made less than 21 days before trial. This statute also applies to the period up to the end of the trial or another period dictated by the court. Mr. Ford has stated that the settlement relates to the whole of the claim, which includes your medical and living expenses. It does not take into account any counterclaim. Mr. Ford is making an offer most likely solely out of liability, which is allowed. However, as is appropriate to the case and was neglected to be included in Mr. Ford’s Part 36 settlement, Mr. Ford does not address personal injury claims for future pecuniary loss. Nor does Mr. Ford make an offer to settle the claim for provisional damages, or a deduction of benefits. Before the expiration of the relevant period, Mr. Ford may withdraw his offer or change his terms, which may be less advantage to you (should the court give permission). After expiration of the relevant period and provided that Mr. Ford has not previously served notice of acceptance, Mr. Ford may withdraw the offer or change its terms—which potentially would be disadvantageous to you—without the permission of the court. If Mr. Ford does indeed perform a withdrawal or change of terms, he will serve you a written notice. An offer to pay a global sum, if accepted, at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless you accept the offer. According to Part 36, the defendant does not, as he is required to do, state what part of the offer relates to damages for future pecuniary loss. Pecuniary loss includes loss of money, in most cases loss of reasonable pecuniary benefit from the discontinued health of yourself, suffering a broken fibula and three cracked ribs, precluding you from loss of services, training, education, society, and the money you would have earned in your capacity at work should you have not been injured. In this case, however, Mr. Ford may, as he has, offered to pay all of the damages in this one lump sum of 6,000 pounds. Mr. Ford has avoided, as he is allowed to, making an offer in respect of a claim for provisional damages. Thus, he avoids what part of his offer would be covering any provisional damages you may have incurred. Provisional damages are sums awarded to an injured party for, among other things, residual effects of an injury which have reduced the capability of an individual to function as a whole person, future pain and suffering, loss or impairment of earning capacity, and future medical expenses. Within seven (7) days of having accepted the offer, you must apply to the court for an order of provisional damages under rule 41.2. Within seven (7) days of the offer being made, you may request to have Mr. Ford clarify the offer. If he does not act within seven (7) days, you may apply for an order that Mr. Ford does so. A Part 36 offer may be accepted at any time, unless Mr. Ford serves notice of withdrawal of the offer. Unless you and Mr. Ford are in agreement, the offer may not be accepted after the end of the trial but before judgment is handed down. Unless you and Mr. Ford agree otherwise in writing, since the sum of money offered is a lump sum, that sum must be paid to you within 14 days of acceptance or when the court makes an order or rule, unless the court orders otherwise. If the sum is not paid to you within 14 days after acceptance, Mr. Ford may enter judgment for the unpaid amount. When you do go to trial, if you accept this offer, mention of it may not be made to the trial judge. If there is a deduction of benefits, Mr. Ford should have stated the amount of gross compensation, as well as any deductible amounts which would reduce said benefits, and the net amount of compensation. Seeing as how Mr. Ford’s offer does not take into account future pecuniary loss, provisional damages, and deduction of benefits—I would, as your solicitor, advise you to wait patiently for this case to come to trial. You are liable to be awarded several thousand pounds in damages for your physical condition, pain and suffering, worker’s compensation, and monies for future medical treatment—as well as for any other kinds of damages which apply. Unless you are in a position in which you are severely strapped for cash, I would advise against taking Mr. Ford’s settlement under Part 36. Please feel free to contact me at any time. Thank you! Sincerely, Your Solicitor REFERENCES Black, Henry Campbell. Black’s Law Dictionary: Defintions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern. 5th Ed. St. Paul, Minn.: West Publishing Co., 1979. Claydon, Wrigley. Law Reform (Contributory Negligence) Act [of] 1945. http://www.swarb.co.uk/acts/1945LawReformContributoryNegligenceAct.shtml. Retrieved 8 May 2009. Kinkead, Edgar B. Commentaries on the Law of Torts. USA: Bancroft-Whitney Company, 1903. Ministry of Justice Web Site. Part 36: Offers to Settle. http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part36.htm. Retrieved 10 May 2009. Net Industries. Definition of Negligence. http://law.jrank.org/pages/8788/Negligence.html. Retrieved 7 May 2009. Steele, Jenny. Tort Law: Texts, Cases, & Materials. USA: Oxford University Press, 2007. Read More