There are several things that will be taken into consideration when a judge is determining what compensation you should receive for injuries sustained following an accident whereby you were a passenger in a vehicle which was being driven by a person under the influence of alcohol..

There are certain factors which will be looked at when considering whether a deduction should be made;

• Did you know or should have known that the driver had consumed such a quantity of alcohol which would be likely to impair the drivers capacity to drive safely?
• Did you observe how much the driver was drinking throughout the night/day before your journey home?
• How long had you spent with the driver prior to the journey resulting in an accident?

A leading case which has set out most of the principles of law in this area is Owens V Brimmel. In this case the passenger in the vehicle had spent the evening with the driver in various pubs, the passenger was aware of how much the driver had consumed and although was intoxicated himself, it was argued that he should have known before they started drinking that the driver would not be in a fit state to drive home at the end of the night.

Nevertheless the passenger still accepted the lift home at the end of the night and the vehicle was inevitably involved in an accident. The passenger sustained serious injuries.

It was found that the passenger had contributed to his injuries by accepted the journey knowing the above and as such, his compensation was reduced by 20% (this is known as contributory negligence).

However, in a different case were the driver and passenger where brothers who had been out drinking together, the passenger’s compensation was reduced by 30%

What happens if I did not know how much the drvier had consumed/ was unaware he was intoxicated?

Your damages may not be reduced if you can show that you did not know how much the driver had consumed and the driver did not give an indication that his ability to drive was impaired by the amount he had consumed. A good example of this was set out in a case called Traynor V Donovan where the passenger had only met the driver 30 minutes before the car journey and the judge held that within that half an hour she would not have been able to observe the drivers drinking. The passenger was awarded her full compensation and no percentage was taken.

Conclusion

• You may still claim for personal injury sustained whiles travelling as a passenger in a vehicle driven by a drink driver
• Your compensation will be reduced (around 20/30% depending on the exact circumstances) if you knew/ should have known that the driver had drank so much as to impair their driving ability
• There is a defence that you did not have the time to observe the drivers drinking to be able to judge that he was ‘over the limit’ or unfit to drive
• This defence cannot be used if you travelled to the ‘night/day out’ with the same driver knowing that it was there intention to drink.

Even where proceedings are necessary, we find that it may well be that once solicitors are instructed to defend the claim that they take a view that they do not have a strong enough defence to the claim and therefore advise the Defendant that they should immediately settle the injury claim before further costs are clocked up; thus even where proceedings are issued we find most of these cases then settle shortly thereafter.

It is simply not in the Defendant’s interests to run a case to a final hearing, especially if they do not feel they have very good prospects of successfully defending the claim.

The occupiers liability Act 1957 sets out duties for the occupier to ensure that an authorised visitor will be safe for the purpose of which he has been invited there for.

So basically this means for example, if a plumber has been invited to fix the toilet in the bathroom, then goes rummaging through the occupiers jewellery in the bedroom and falls through the floor, he will not be able to sue the occupier for any injury or loss caused because he was not permitted to be in the bedroom. However, The Occupiers Liability Act 1984 which I will cover in another post does actually cover trespassers so please don’t make the mistake of thinking that trespassers can not claim. They can’t claim under the 1957 Act but they may have a claim under the 1984 ACT.

In order for a lawful visitor to make a successful compensation claim under the 1957 Act following an injury caused in the exercise of his lawful visit, he must prove various things:

That the person he is suing is an ‘occupier’

An occupier is someone who has responsibility for the property, has control over the property or has an interest in the land, so this may mean not only a landlord of the property, but the person living in the property paying the rent. This also goes for owners of property. So for the control test, it is possible to sue a licensee of a public house if a breach of duty has occurred.

Breach of duty:

As discussed above the occupier owes a duty to his visitors to take “reasonable steps” to ensure their safety.

Therefore, an injured lawful visitor must show that the occupier has breached that duty of care. For example if the landlord has failed to do regular checks on the boiler system as he should, and the tenant contracts carbon monoxide poisoning, the landlord is likely to have breached his duty to ensure the boiler system is safe – keeping the tenant safe.

You must note that the occupier’s duty is not to insure the visitor against harm but only to take “reasonable steps” to ensure the visitor is “reasonably safe”.

This duty varies with each and every different circumstance, for example the duty of the occupier will be higher to children whilst visitors exercising skills – for example a plumber/ electrician should be expected to safeguard themselves against the risks which are commonly attached to that type of work. So in the case of Roles V Nathan, the occupier was not found liable for the death of two chimney sweeps when they failed to take steps to guard themselves against possible fumes that would be in the chimney.

You must also note that a warning sign may not always be classified as a ‘reasonable step’ by an occupier to safeguard it’s visitors against dangers unless the sign is enough to enable the visitor to be safe.

This area of law is very wide and grey and each case must be looked and studied individually, the best thing you could do if you are unfortunate enough to be injured in these types of circumstance is to contact Lawyers that specialise in these types of claims and have years of personal injury claims experience to rely upon when advising you.

Contributory Negligence MUST be pleaded by the Defendant and it also has to be proved by the Defendant.

You cannot be found to be contributory negligent in your case, if it has either not been pleaded (claimed) by the Defendant nor has it been argued at the final trial.

The test for contributory negligence is set out in the Law Reform (Contributory Negligence) Act 1945, s 1 (1) and it explicitly states that the Defendant must establish on the ‘balance of probabilities’, 3 main facts:

• That you, the Claimant, were at fault
• The fault was causative of the injury which you suffered
• It would be just and equitable for your damages to be reduced

It is often the case that the third point, listed above, is ignored as the conduct of the Defendant’s themselves could mean that the third test alone would fail and the judge is likely to state that there should be no reduction.

It is also stated that in Accident At Work claims, your lack of concentration or inadvertence, cannot form the basis for finding you to be contributory negligent when you have been injured as a result of a negligence by your Employer!

In conclusion, it is worthwhile noting that it is difficult for the Defendant’s to prove a case of contributory negligence as it is for the Defendant’s to both plead and prove the same.

[2007] EWHC 2091 (QB)

QBD (Flaux J) 13/9/2007

DAMAGES – PERSONAL INJURY

FUTURE LOSS : GENERAL DAMAGES : MEASURE OF DAMAGES : MULTIPLIERS : PARAPLEGIA : PERIODICAL PAYMENTS : ASSESSMENT OF AWARD FOLLOWING ROAD TRAFFIC ACCIDENT : APPROPRIATE MULTIPLIER : JSB GUIDELINES : OGDEN TABLES

The court assessed damages to be awarded for personal injury following a road traffic accident in which the claimant had been rendered paraplegic with no residual movement below his shoulders and suffering some pain, although he had no brain damage and could speak, see and hear normally.

The court was required to assess the quantum of damages due to the claimant (B) for personal injuries sustained by him in a road traffic accident for which the defendant (K) had been responsible. At the time of B’s accident, which rendered him paraplegic, he had been 18 years old. He became wheelchair-dependent and unable to use any part of his body below his shoulders, but his mental capacity had survived intact. Liability was admitted by K, and although aspects of the claim had been accepted, the main areas of quantum remained in dispute. The issues for determination included where B fell within the range of possible awards for general damages for quadriplegia under the JSB guidelines; assessment of B’s life expectancy; the appropriate multiplier, using either Table 1 “Impaired lives” or Table 28 “Multipliers for pecuniary loss for term certain” in the Ogden tables; the cost of future case and case management, depending on the appropriate care regime; whether it was appropriate to order periodical payments of damages rather than a lump sum; the extent to which the award of damages for future care required reduction or adjustment to reflect funding for care that B received and would continue to receive from the local authority and primary healthcare trust; in respect of accommodation, the calculation of interest allowable on the difference between the price paid by B for suitable accommodation in the form of an adapted bungalow and the price he would have paid for a house had he not suffered the injury, pursuant to the principle in Roberts v Johnstone (1989) QB 878 applied; and future loss of earnings and special damages.

HELD: (1) Although B had no residual movement below his shoulders and had some pain, he had no brain damage and could speak, see and hear normally. Therefore, he fell somewhere slightly above the middle of the range set out in the JSB guidelines for quadriplegia, and would be awarded £227,000 for pain, suffering and loss of amenity. (2) On all the evidence, B’s total life expectancy was 66 years, or a further 41 years beyond his current age. (3) The assessment of life expectancy had involved a clinical judgment as to the positive and negative factors applicable to B in order to assess the reduction in life expectancy compared with the average for a man of his age as set out in Table 1 of the Ogden Tables. As mortality had already been taken into account in that exercise, to use Table 1 again to establish the appropriate multiplier to discount damages for future cost of care and other future losses would involve a double discount, Royal Victoria Infirmary & Associated Hospitals NHS Trust v B (A Child) (2002) EWCA Civ 348, (2002) PIQR Q10 applied. In the instant case, it would be more appropriate to use Table 28 to establish an appropriate multiplier for B, which would be 25.78. (4) The most appropriate care regime for B involved a flexible “four man team” approach, with two carers present for four hours a day. Eighteen hours a day in total would be allowed for daytime care, with additional provision for a night sleeper for 337 nights a year, waking nights in times of illness, national insurance, annual or sickness leave, recruitment and payroll costs, additional food costs and community access fund. (5) In the circumstances, it was not appropriate to order periodical payments generally. The one area where periodical payments would be appropriate, however, was in relation to the cost of future care and case management, as such an award would best protect B in respect of his likely needs in the future. (6) The effect of an award in B’s favour of annual payments in respect of care and case management was likely to be that the local authority would require B to make a contribution towards the cost of care that it and the primary healthcare trust would otherwise continue to fund. It would be fairer to reduce B’s annual payments rather than simply to make a reduction in the multiplier. (7) B was awarded sums in respect of occupational therapy and aids, physiotherapy and equipment, and hydrotherapy and a swimming pool. (8) It had been reasonable for B to have bought the property he had, and there was no basis for concluding that he had paid an excessive price for it. In those circumstances, an award of interest would be payable on the difference between the figure paid for his house and that much lower figure he would have paid for an ordinary property had he not suffered the accident, Roberts applied. B would also be entitled to recover the adaptation costs of his accommodation. (9) B had no residual earning capacity, and but for the accident would have earned £16,800 a year. The correct award for future loss of earnings was, applying the accepted multiplier of 20 to that figure, a total award of £336,000. (10) B was entitled to special damages for items including loss of earnings, family care, equipment, insurance and travelling expenses. (11) The overall gross amount of the award of damages and interest was £6,320,434.49, from which would be deducted sums received from the Compensation Recovery Unit, together with interim payments and interest on those sums.

GERARD LANE v PERSONAL REPRESENTATIVES OF DEBORAH LAKE, DECEASED (2007)

QBD (John Leighton Williams QC) 18/7/2007

DAMAGES – PERSONAL INJURY

BEHAVIOURAL PROBLEMS : BRAIN DAMAGE : GENERAL DAMAGES : LOSS OF EARNINGS : MEASURE OF DAMAGES : ROAD TRAFFIC ACCIDENTS : ASSESSMENT OF AWARD FOR BRAIN DAMAGE FOLLOWING ROAD TRAFFIC ACCIDENT

The court assessed damages to be awarded for personal injury following a road traffic accident in which the claimant had sustained severe brain injuries that left him with serious emotional, behavioural and psychological problems.

The court assessed damages in a claim for damages for personal injuries sustained by the claimant (L) in a road traffic accident. L had been driving a van when it was struck by a car. The defendant driver of the car (D) was killed in the collision. L sustained a range of physical injuries that were largely resolved by the date of the instant judgment. However, he also sustained severe brain injuries that resulted in emotional, behavioural and psychological problems. L had been employed as a construction site project manager but could not continue with that work after the accident. D’s personal representatives had admitted liability and judgment was entered for L with damages to be assessed.

HELD: (1) In relation to damages for pain, suffering and loss of amenity L’s injuries had had a devastating effect on his life. His brain damage together with his other injuries other than diminution in taste and smell were valued at £80,000. The loss of his taste and smell were valued at an additional £10,000. (2) An award for loss of congenial employment ought to be confined to those who truly had suffered a loss under that head and was neither to be awarded merely by reference to the type of employment nor automatically as an extra. L had always been a hard worker and had enjoyed his work in the building industry. It was accepted that he would never return to that work. An award of £5,000 was appropriate. (3) In terms of past loss of income L should be awarded £126,027.42 on the basis that he would have continued as a project manager or construction site agent and in terms of future losses he should be awarded £360,633. (4) It was agreed that as a result of the brain damage L suffered from an increased risk of epilepsy. Although L was free from epilepsy at the instant date the parties agreed that damages should be awarded on the basis of epilepsy not occurring. (5) It was appropriate that a case manager should be appointed and future case management costs were assessed at £142,175. In addition, to encourage L to play a part in society, an award of £231,722 was made to cover the provision of a support worker. A total award of £377,009 was made for future rehabilitation, care and assistance. (6) The total award, including miscellaneous costs such as vehicle costs, medical treatment and equipment and after adding interest was £1,076,489.28.

EDMUND ROGER WILLIAM NUNNS (BY HIS LITIGATION FRIEND, JOAN NUNNS) v RJ CANNON (CRANE & PLANT HIRE) LTD (2007)

Total Damages: £6,000,000
Trial/settlement date: 25/5/2007
Judge: Keith J
Age at trial: 59
PSLA: £200,000 (£201,066.93 RPI)
Type of Award: Court Award
Court: QBD
Age at injury: 54
Sex: Male
The claimant, a 59-year-old man, received £6,000,000 for the permanent injuries sustained in a road traffic accident in September 2002. He suffered paraplegia with no voluntary movement below his abdomen and hypoxic brain damage following an operation on his injuries.

Claimant: Male: 54 years old at date of accident; 59 years old at date of award.

Road Traffic: On September 3, 2002, the claimant (C) was driving his motorcycle when a crane driven by an employee of the defendant company (D), travelling from the opposite direction, turned right across his path and collided with him.

C sustained injury and brought an action against D alleging that D’s negligent driving had caused the accident.

Liability disputed.

Injuries: C suffered from paraplegia at T8 and hypoxic brain injury.

Effects: C was unable to make any voluntary movement below his mid-abdomen. He suffered a fractured dislocation of his left shoulder and although surgery was carried out, it remained effectively useless. Consequent to hypoxic brain damage following an operation on his injuries, C suffered from severe cognitive impairment. His speech and ability to swallow were also severely impaired and he relied on a computer for speech.

Due to the injuries sustained, C was dependent on a powerchair for mobility and required a 24-hour care package with double-up care for transfers and wake-in night care.

Prognosis: C was not expected to recover from the injuries sustained.

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Court Award: £6,000,000 total damages.

Background to damages: A decision was taken for the purchase of a structured settlement.

The amount claimed for accommodation reflected the need to match the high quality of life led by C prior to the accident. C had been an accountant and owned a grade 2 listed house. Following investigations into the possibilities of adapting the property or purchasing another, a plot of land was purchased with the intention of building a property designed around C’s needs.

Breakdown of General Damages: Pain, suffering and loss of amenity: £200,000; Future loss of earnings and pension: £250,000; Future care and case management costs: £2,700,000; Future medical treatment and therapy costs: £300,000; Future mobility, aid and equipment costs: £180,000; Future transport costs: £220,000; Future household aid and equipment costs: £200,000; Future leisure, computer and communication costs: £120,000; Future holiday costs: £100,000; Future accommodation costs: £750,000; Future court of protection and receivership costs: £180,000.

Breakdown of Special Damages: Past loss of earnings and pension: £270,000; Past care and case management costs: £165,000; Past medical treatment and therapy costs: £35,500; Past mobility, aid and equipment costs: £33,000; Past transport costs: £61,000; Past household aid and equipment costs: £78,000; Past leisure, computer and communication costs: £15,000; Past holiday costs: £5,000; Past accommodation costs: £131,000; Past court of protection and receivership costs: £6,500.
SUSAN PATRICIA PALMESE v LIONEL LUCIEN REBOUL (2007)

QBD 30/3/2007

PERSONAL INJURY – DAMAGES

BRAIN DAMAGE : EPILEPSY : FUTURE LOSS : LOSS OF AMENITY : MEASURE OF DAMAGES : ASSESSMENT OF LEVEL OF DAMAGES FOLLOWING ROAD TRAFFIC ACCIDENT

The court assessed damages for a claimant who had suffered a minor brain injury following a road traffic accident but who had failed to establish on the medical evidence that the accident had caused her to suffer from epilepsy.

The claimant (P) claimed damages for personal injury arising after a road traffic accident with the defendant (R). P had been involved in a head on collision with R, who had been driving on the wrong side of the road. P claimed that she had suffered a significant brain injury in the accident that had resulted in organic epilepsy. P claimed special damages of £263,27.05 and damages representing future losses of £1,488,501.35. Prior to the accident P had had a difficult personal life and had suffered from numerous medical problems including depression and what were described as fits or “funny turns”. P gave evidence that the brain injury had effected her capacity for employment and that she required a personal assistant to help her manage her affairs and carers to assist in her day to day living. It was R’s case that P had suffered minor brain damage, that there were no future losses attributable to the accident and that P’s symptoms of epilepsy were the continuation of aspects of her psyche that had been manifest before the accident and were consciously or unconsciously exaggerated. A joint statement from medical experts stated that P had suffered a mild brain injury.

HELD: (1) On the evidence P had suffered a total loss of memory after the accident for a period of five minutes and had a lack of continuous memory for a period of no more than one hour. The medical evidence showed that the periods of post-traumatic amnesia viewed in isolation indicated a brain injury on the borderline of mild and moderate. P had not established on the evidence that she had epilepsy. There was a substantial history of pre-accident migraine and “funny turns” which, on the cogent evidence, were likely to continue. The attacks described were a continuation of the type of “funny turn” experienced by P before the accident. Accepting the evidence of the joint report P had made a good recovery from the injury and her present symptoms were generated by factors unrelated to brain damage. Although it was impossible to accurately measure to what extent the accident contributed to P’s present psychological condition, when assessing damages it would be taken into account that it played a very small part. (2) Evidence that P had managed a number of foreign holidays was inconsistent with her claim that she required significant future care. P would be awarded £45,750 for pain, suffering and loss of amenity which included an appropriate sum for the brain injury at near to the upper end of the range for minor brain damage. P would be awarded damages for past losses of £82,086 which included loss of full time earnings for a period of one year and seven months after the accident and part time earnings for a further period of three years. In relation to future losses the stage had been reached where the accident was no longer the cause of P’s lack of employment. P would be awarded a further sum of £20,000 for the future loss of earnings which included loss arising out of a continuing lack of mobility. An award of £60,000 would be made to provide a cushion for the period in which P should be weaned off the present care regime.

STEPHEN TAME v PROFESSIONAL CYCLE MARKETING LTD (2006)

QBD (Judge Harris) 19/12/2006

DAMAGES – PERSONAL INJURY

BRAIN DAMAGE : FUTURE LOSS : GENERAL DAMAGES : MEASURE OF DAMAGES : PAST LOSS : PAIN, SUFFERING AND LOSS OF AMENITY : APPROPRIATE AWARD : LOSS OF MARRIAGE AND PROSPECT OF FAMILY

The claimant was awarded special damages for past and future losses, and general damages for pain, suffering and loss of amenity following an accident at work that caused brain damage.
The claimant (T) sought quantification of damages in respect of serious personal injury he had suffered whilst in the employment of the defendant company (P). T had fallen from an overhead platform and landed on his head, causing severe damage to the frontal lobe of his brain. P admitted liability. At the time of the accident, T had been aged 24 and married to his wife (W) for eight months. T spent nine months in hospital, and then almost two years in a rehabilitation centre, having made what was described as a miraculous recovery. Whilst in hospital, the decision was taken to move from the couple’s former house to a bungalow, to facilitate T’s care. Once at home, T had been cared for by W and support workers under the supervision of care managers. Having found the bungalow too remote from the much needed support of friends and family, the couple moved again. As a result of the accident, T suffered disability, which included fatigue, visual and speech problems, problems with memory and cognitive processes, disinhibitive behaviour and stubbornness, irritability and aggression, all of which resulted in a difficulty in performing everyday tasks, and a need for his time to be structured and managed in order that he maintain functional independence. The appropriate quantum of damage in respect of past and future losses fell to be assessed, which included, in order to ascertain T’s future care needs, a determination of whether T and W’s marriage was likely to survive, and the appropriate level of care T would consequently need. The appropriate award of general damages also fell to be determined.

HELD: (1) Statistical evidence showed that where one partner suffered frontal lobe injury, as T had, the relationship would typically break down between four and eight years following the accident. In the light of factors including the very short marriage before the accident, which had not been entirely happy, the two-and-a-half year separation thereafter, the number of separations between and current separation of T and W following his return home, the lack of T’s faithfulness, and an end to the couple’s physical relationship and W’s feelings of love for T, despite her strong sense of duty towards him, it had to be concluded that the marriage would not survive. T’s future care needs would, accordingly, be assessed on the basis that the marriage would only survive for another year, and from then on T would not have W with him. (2) T would be awarded sums for past losses, including, inter alia, loss of earnings; past family care (to which the conventional deduction of 25 per cent where care was provided by family members would be applied); past professional care; past case management; aids, equipment and activities (which would not have arisen but for T’s need for rehabilitation); therapy; and accommodation. In respect of the latter, it would be appropriate to reimburse T for the cost of moving house a second time, as no court should judge too precisely what claimants had to do if they were the victims of negligence or a wrong. (3) T would be awarded sums for future losses, including, inter alia, future earnings (on the basis that T would have remained in only modestly paid employment had he not suffered the injury, and in the light of the fact that it was not realistic now to expect him to obtain paid work); future care for the first year based on the requirement for a support worker for eight hours a day, with family care provided by W, and thereafter based on requiring support for ten hours a day, with the provision for a six-week period in every year of bulk/contingency support on a one-to-one basis; case management costs; future treatment; and additional expenses or services arising as a result of his accident. (4) Following the accident, T had been transformed and, in a sense, the fact that he had some awareness made that even worse, because at every moment he was reminded of what might have been before the accident. Further, on the court’s findings, that he had lost his marriage and the prospect of a family. In the light of Judicial Studies Board guidelines and taking account of T’s present disabilities and what he could and could not do, the appropriate award of general damages for pain, suffering and loss of amenity would be the sum of £150,000.

AL GOURI v ACKHAR (2006)

Total Damages: £4,266,666
Trial/settlement date: 21/11/2006
Age at trial: 25
PSLA: £175,000 (£180,395.33 RPI)
Type of Award: Out of Court Settlement (approved)
Court: Out of Court Settlement
Age at injury: 16
Sex: Male
The claimant, a 25-year-old man, was awarded £4,266,666 for the brain injury he sustained in a road traffic accident in September 1999. The claimant would never be able to walk or manage his own affairs and would require 24-hour care for life.

Claimant: Male: 16 years old at date of accident; 25 years old at date of award.

Road Traffic: On September 24, 1999, the claimant (C) was a rear passenger in a vehicle when the car left the road, overturned and C was thrown out of the car.

C sustained injury and brought an action against the defendant driver (D) alleging that his negligent driving had caused the accident.

Liability admitted.

Injuries: C sustained a severe brain injury.

Effects: C’s injury caused residual physical, cognitive, emotional and behavioural problems. He would never be able to walk independently, manage his own affairs or work and he would require round the clock supervision, with assistance for personal activities and all domestic and communal activities.

Prognosis: C would need 24-hour carer support and a maintenance programme supervised by a case manager. His life expectancy was agreed at 65.

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Out of Court Settlement (Approved): £4,266,666 gross damages (£3,200,000 net after 25 per cent reduction for contributory negligence).

Background to damages: Contributory negligence was based on C’s failure to wear a seatbelt in the rear of the car. Damages were settled at the door of the court; the breakdown was not agreed by MIB but was approved by the court. The case was settled on a lump sum basis, periodical payments having been rejected because of the 25 per cent reduction for contributory negligence and the need to provide sums for housing.

Breakdown of General Damages: Pain, suffering and loss of amenity: £175,000; Future loss of earnings: £550,000; Future care (with no deductions for any input from the local authority): £2,275,597; Future case manager: £133,454; Future Court of Protection and receiver’s costs: £104,749; Future chiropody: £3,623; Future occupational therapy: £10,560; Future speech and language therapy: £1,296; Future physiotherapy: £59,941; Physiotherapy equipment: £9,129; Future hydrotherapy: £10,567; Future psychology treatment: £35,224; Future equipment: £50,000; Future transport: £84,000; Past and future accommodation: £344,238; Future miscellaneous: £62,900; Interest: £25,000.

Breakdown of Special Damages: Past loss of earnings: £17,500; Past care award: £111,628; Past case management: £35,426; Past Court of Protection and receiver’s costs: £12,572; Queen Elizabeth Foundation Brain Injury Centre Banstead: £120,263; Past transport: £20,000; Miscellaneous: £15,000.