Relevant Case studies
Mr M
M was a 19 year old when he was involved in a road traffic accident as a front seat passenger in July 1998. The insurance company for the driver of the vehicle in which M was travelling admitted liability for the accident as the driver had lost control of the vehicle due to excessive speed. Agreement was then reached and M accepted 13% contributory negligence as there was an issue as to whether or not he had been wearing a seatbelt.
As a result of the accident M sustained a serious injury to the frontal part of his brain, leaving him with a permanently impaired sense of smell and an increased risk of developing epilepsy. M’s brain injury caused him difficulty with memory, planning and organisation and he required prompting and supervision from others. He developed a severe compulsive obsessive disorder in relation to cleanliness and also sustained minor orthopaedic injuries and facial disfigurement.
M was found to require considerable care, support and assistance all managed by an experience brain injury case manager. He wished to live independently and therefore prior to the final settlement of his claim a regime was put in place whereby a property was secured and a system of care and support was established to see if this was a realistic possibility for the future. This arrangement was successful and M now continues to live independently in his own home with assistance from his case manager and support workers.
In addition to claiming compensation for care and ongoing support we also made a claim for future loss of earnings as M was unable to secure any meaningful employment. This aspect of the claim required careful consideration as due to M’s young age he was yet to establish a definitive career path. We obtained input from his family and friends to enable us to build a picture of what his realistic future path would have been and a claim was calculated from that information.
M was found to be unable to manage his own financial affairs and therefore part of the award related to costs of a professional Receiver appointed by the Court of Protection. The Receiver ensures that the award made will meet M’s needs for the rest of his life.
M’s claim was settled out of court for £1.25 million after deduction of 13% contributory negligence and deduction of state benefits. The settlement was approved by Cardiff County Court in November 2004 as M’s injuries were such that he was deemed not to have capacity for conducting his own litigation.
Mr E
E went on a package holiday to
E assumed that it was safe to dive in without first checking the water depth. For this he accepted he would be held partly to blame. Nonetheless it was alleged that the Defendant was at fault as the pool was open at night and it should not have been; it was officially a "No Diving" pool, but diving was condoned; the signage regarding opening hours and "No Diving" was inadequate; there were no signs reminding users which was the shallow end and the depth markings present were inadequate. Reasonable and proper performance of the holiday contract required compliance with pool safety signage recommended by the Federation of Tour Operators.
The Defendant argued that E had willingly dived into water the depth of which he did not know but which he could easily have found out. He did so in the middle of the night, in the dark and knowing that there was no supervision. He ignored two "No Diving" signs and two depth markings on the edge of the pool, as well as other warning signs at various points around the pool terrace. The sole cause of the accident was his own decision to dive in. In these circumstances the Defendant did not owe E any duty to warn or protect him from an obvious risk that he chose to take for himself. Alternatively, the signs and warnings around and about the pool were reasonable.
At trial judgment was given for E subject to a deduction for contributory negligence of 50%. The Package Travel Regulations 1992 made the Defendant liable for proper performance of the holiday contract. The case was entirely different from the "Occupiers’ Liability" cases cited on behalf of the Defendant. The duties owed by a tour operator or hotelier in circumstances where they sold package holidays to people who were likely to be in relaxed and in high spirits were entirely different and of greater scope to the sort of duties expected of the occupier of open land such as lakes, quarries and mountains.
The Defendant appealed to the Court of Appeal and the original trial decision was overturned. The holiday contract did not impose a greater duty on occupiers. E had known it was dangerous to dive into a pool when he did not know the depth yet he did so willingly and as such was the author of his own misfortune. The Defendant had no duty to warn E against an obvious hazard. It was also felt that had further and better signage been present E would still have dived in his moment of inadvertence.
Y v Criminal Injuries Compensation Authority
The Applicant was attacked in
The Applicant was left with significant difficulties including right sided hemiparesis; two epileptic fits; profound impairment of speech and language; dyspraxia; memory impairment and difficulty learning new information. These problems are permanent and it was the opinion of the medical experts that the Applicant would never work again. He was found not to have the capacity to manage his own property and affairs and an application to the Court of Protection was made for a Receivership Order. Professional Receivers were appointed and their costs included in the claim.
The Applicant had a close network of friends in his locality who came together and provided him with assistance and support as a group following the assault. An assessment of his care and support needs was carried out by his local authority under the NHS and Community Care Act. The conclusion of this was that the Applicant had needs but that these were being dealt with by the circle of friends and as such there was no need for the local authority to provide any input other than to appoint a social worker.
A rehabilitation cost report was obtained. This identified that the Applicant needed involvement from a support worker to help in planning, structuring and executing daily tasks. He also needed domestic assistance to carry out domestic tasks around the home. There was a need for a case manager to assist the Applicant and deal with the employment issues which arose from this report. It was identified that the Applicant would benefit from occupational therapy and this was costed in as were the costs of transport and various aids and items of equipment that would help the Applicant due to his physical limitations.
Initially the CICA rejected the submission that they should make any contributions for a support worker, domestic assistant or case manager due to the existence of the group of friends and the fact that they were providing what was required for free. An offer reflecting their gratuitous care was made. Witness statements were obtained from the group stating that their numbers were dwindling and the Applicant’s reliance on them in the future could not be guaranteed.
Also further evidence was obtained from the local authority showing that they were only willing to fund care in situations where the individual need was deemed "critical and substantial". Despite his significant injuries the Applicant did not fall into this bracket. This, when coupled with the dwindling pool of support from friends, resulted in a change of heart by the CICA who conceded a need for case management and professional support. A maximum award of £500,000.00 was made broken down as follows:
Hemiplegia - £ 50000.00
Serious Brain Injury - £ 4000.00 (10% of £40,000.00)
Skull fracture with operation - £ 300.00 (5% of £6,000.00)
Past Loss of Earnings - £ 54100.00
Past Equipment Costs - £ 15569.00
Past Gratuitous Care - £ 37533.00
Receivership Costs - £ 46651.00
Case Management - £ 7308.00
Future Costs of Care - £284539.00
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