Applied Law - QCF (Edexcel)

Damages (Part 3 - example)

"Eighteen months ago, Adam (aged 25), suffered permanent brain damage and permanent paralysis of both legs in a car accident. Bert (aged 19 and a plumber) was driving his car along Beverley Road at the junction with Cottingham Road. The traffic lights had just turned red but Bert, who was in a rush to arrive at a 'job' he was running late for, went through the red light. Bert crashed into the side of Adam's car at speed. Whilst there is no evidence of Adam driving poorly there is evidence to suggest that Adam may have contributed, at least in part, to his injuries as he had not been wearing a seatbelt. Adam's car was a complete 'write-off'. Adam spent a year in an NHS hospital undergoing a series of surgical operations and suffered considerable pain and discomfort. He spent a further five months in an expensive, private convalescent home in Switzerland before returning to his parent's home in England last month. Before the accident Adam was earning a substantial salary as an Assistant Solicitor with Craven Hazard & Co in Hull, with whom he had good prospects of an early partnership. He was then in good health, led an active social life and was a keen athlete. He has suffered no reduction in life expectancy but is now confined to a wheelchair, requires full-time nursing and his mental faculties are so impaired that there is no possibility of him ever working again as a solicitor. His parents have recently spent £15,000 modifying their home to accommodate Adam's wheelchair and his mother has given up her job as an investment consultant to give him the full-time nursing which his condition requires. He is in receipt of a disability pension of £15,000 per annum as a result of his employment, and has also received £10,000 from a solicitors' charity."

Dear client,

I have reviewed your case and I believe it is admissible in court, due to the car crash your son and yourself have suffered a very large loss leaving you viable for any damages, here are the findings I have regarding your case. First of all your son's car was a complete write off meaning that because it has sustained so much damage in the crash that it is beyond economical repair, this is a puniciary damage so you should expect to get a large sum for this. Another penicary damage faced is that because your son was 25 at the time of the accident and was is full time employment the amount of possible future earnings even with promotions he could have gained makes you entitled to compensation , this will also take his life expectancy into consideration. The non-peniciary damages your son faced can also make him viable for damage and this includes the pain and discomfort he faced along with the fact you've had to give up your job. Therefore I will contact my supervisor as it seems suitable to press charges.

Dear supervisor,

I have reviewed a recent case between our potential client Adam and the defendant Bert whom we could sue for damages, after reviewing the case I have concluded that it likely will be a positive outcome for the potential client due to a number of reasons, throughout this review I will state why we should take on this client. The defendant is 19 years old, this means that it is fair, just and reasonable for him to be responsible for his actions and because the defendant was driving when the incident occured the neighbourhood principle is applicable as the defendant has a duty of care to other road users. The main reason the accident occured is because the defendant crossed a red light as he was in a rush to go to work, this isn't a justifiable reason to cause danger to other road users so therefore he breached his duty as a licenced driver, furthermore it was also foreseeable that this could cause an accident also proving that the damage caused was not too remote, it also occurs to me that because the physical proximity between the defendant and the client was enough to make the defendant responsible this makes the caparo test applicable, viewing this case I can also conclude that the defendant did not act in the way a reasonable man would have. This case looks successful overall but because the client wasn't wearing a seatbelt at the time of the accident and this would have prevented many damages from occurring the compensation our client could have earned is reduced by 15% as to what it would have been if this wasn't the case.

Negligence has many positives and many negatives, the positives of negligence are that negligence gives the opportunity to right a wrong and put the claimant is their original financial position a lot of the time, and everything is vigorously tested in order to the intention that it is justifiable and unbiased additionally negligence is based on legal precedence. The negatives of negligence are that it's a long drawn out process, it can cost a lot to sue in the first place, there's a possibility of being unsuccessful, the insurance will get more expensive and claiming insurance in general can create a compensation culture. I would say that sometimes the law of negligence is subjective and can be based on opinion, for example, the idea of being fair, just and reasonable is based on opinion and other people's thoughts in a court that can cause injustice.

Damages has many positives and negatives also, compensation for damages can be claimed for any losses a claimant has suffered, like negligence puts the claimant the the original financial position and takes into account pain and suffering, the negatives of negligence is anything regarding the defendant's insurance, it doesn't always put you back in the original financial position like in the alton towers case no matter how much that girl sued it isn't going to get her the leg she lost back. Special damages can be good because the defendant gets the market value of an item but it can also be bad as this may differ to what they paid for originally as this changed over time and general damages I would say is not really entirely positive as it puts a price on things that can't always be calculated, like the loss of future earnings or pain and suffering.

Different types of payments can have positives and negatives too, structured payment is good because it allows the defendant to formulate some kind of financial plan especially if a child is involved, it can be bad as if the defendant dies the claimants stop being paid. Lump sums allow your own money management, it allows for payments of houses and cars but it can be spent all at once.Interim payments allow the claimant to claim for any losses after a case has ended if they found out they suffered anymore damages but this is bad as the defendant doesn't know when it could be over.

I believe that we should have a state run benefit scheme that pays out compensation along with personal liability insurance, I believe that paying personal liability insurance should be a choice but if a defendant gets sued and they don't pay insurance the tax that they pay to the scheme should go up more depending on the extent in which they got sued but the person paying the liability insurance will be better covered and have less of a loss than those who choose not to pay it. This means the insurance will be able to cover it along with the scheme and this can be calculated with what the defendant has paid to each one.