Abdul Mabud Masum
Group: 32(Q)
RE: WILLIAM HARRISON
Opinion
1. I am asked to advise firstly on who should be made Defendant (s) to the claim. Secondly, a provisional advice on quantum of damages that he can expect to be awarded by the Court in respect of personal injuries unfortunately suffered by him in a road accident on 30th November 2000.
2. On 30th November 2000 at about 8.00 a.m, the claimant, Mr William Harrison, was driving the company car, Jaguar XJS registration number AAP3, along the M1 motorway going north. The claimant, was travelling at about 70 m. p.h in the center lane, was about five miles north of the A45 turn off, junction 15, when he surprisingly saw a large wheel bouncing over the crash barrier on the central reservation. The wheel came straight at the car when the claimant had failed to take avoiding action due to very little time. The claimant steered towards the inside lane but the wheel crashed into the offside of the car and rendered him unconscious in the ensuing crash.
3 In summary, I take the view that Mr Harrison has a good cause of action against mainly both (GCF) and (ST). However, I think apart from the cost of private sanatorium $5,150, most of the losses identified by Mr. Harrison will be recoverable. Notwithstanding, the damages that I have figures for both special damages and general damages total $ 4,000. I expect the total award will not be more than about $ 16000.
Liability:
4. There are several parties in this case would be highly likely held liable for damages under the tortious action in negligence. The parties are General Commercial Fitters Ltd (GCF), Smith & Taylor Ltd (ST), Mr Henry Moss, Incars Limited of Peckham and Redland. However, the actions against both General Commercial Fitters Ltd and Smith & Taylor Ltd would be more persuasive than any other parties, although I have considered each parties liability in chronological order as follows.
General Commercial Fitters Ltd:
5. General Commercial Fitters Ltd had been taken responsibility to maintain the vehicle, Redland 800E series lorry, since new, owned by Smith & Taylor Ltd. Clearly, I think there is a better chance that the court would impose a duty on (GCF) for failing to provide reasonable care and skills to maintain the vehicle. The damage is foreseeable which gives rise to a duty of care because the relationship between (GCF) and (ST) is such that it is obvious that a lack of care creates a risk of harm (by the law as one of ‘proximity’ or ‘neighbourhood’). Certainly, the situation is one in which the court would consider it is fair, just and reasonable that the law should impose a duty as the duty of care has been broken.
6. The expected standard of care from (GCF) was an experienced and qualified fitter with reasonable care and skills would have maintained the vehicle. For example, it appears in the problem that the fitter probably a young man following the manual has used the 800A lubricant. Whereas an experienced fitter should have appreciated that the 800A lubricant would be too thin for the 800E bearing. It seems that the average fitter found in commercial workshops today would have agreed that the general standard being very poor. Therefore, (GCF) would be highly likely to be held liable for failing to provide standard of care for the accident. Following, the cause of the wheel becoming detached from the vehicle was the failure of the offside wheel bearing. However, the outer bearing seized, leading to severe heating from friction. The stub axle nut would tend to tighten after failure of the bearing. This in turn would increase the friction and heat until finally the nut failed and released the wheel. So, the accident occurred due to incorrect lubricant.
7. In order for the breach of standard of care, (GCF) would highly likely be incurred liability. The adduced breaches are as follows. Firstly (GCF) had used the wrong lubricant on the previous service, which was too thin and during the 7000 miles travelled by the lorry since the previous service would have evaporated. Secondly, they had over tightened the bearing, presumably being over tightened after the last service when the bearings were lubricated. Thirdly, they failed to seek a workshop manual for the Redland 800E lorry. All they had was an 800A manual and the 800A series has a very different wheel bearing, which should have been quite evident to the fitter, and uses different lubricants. I need further information on both whether Mr Edward James is an agreed expert and the clear evidence that the bearing was over tightened.
Smith & Taylor Ltd
8. (ST) had bought Redland 800E series lorry from Incars Limited of Peckham was maintained by (GCF). I think there is a better chance for (ST) to incur liability, as they were negligent to provide reasonable administrative responsibility. I have already discussed both when the court would impose the duty on (ST) and the standard of care, which is required as in Para.
9. (ST) would highly likely to be held liable for breaches of their duty. Firstly, they failed to have reasonable check the maintenance carried out by (GCF). Secondly, they failed to continue the regular maintenance records. Thirdly, they failed to seek a workshop manual for the Redland 800E lorry from the manufacturer instead they used an 800A manual. However, I need further information on both whether (ST) had any knowledge that (GCF) used the 800A lubricant which was too thin for the 800E bearing and the knowledge of using 800A manual by (GCF) instead of 800E manual. Further, I need clear information on whether Mr Edward James is an agreed independent expert.
The Vicarious Liability for Mr Henry Moss:
10. There is a better chance that Mr Moss would be held liable due to negligent driving. Firstly, he failed to check lorry before driving, seek smoke, feel vibration, hear horne, and pull over. Though it is not clear from the brief, I need further information on his awareness during the driving and in particularly I need expert evidence on vibration and smoke whether was it expected to warn him. Furthermore, I need clear evidence from Redfern in detail of the accident to advice on his negligence.
Liability of Incars Limited / Redland:
11. It is likely that the court would impose duty on Incars and Redland for failing to provide reasonable guidance as an owner of the vehicle. They did not provide a workshop manual for the Redland 800E lorry, though it is not clear from the brief therefore I need further information on the manual for the Redland 800E lorry whether they have actually provided it. Furthermore, Incars Limited failed to continue frequently recommend for the service of the vehicle. I need further information on how often the vehicle should have been recommended for the service by the manufacturers.
Contributory Negligence:
12. The defence may possibly raise the issue of contributory negligence; their argument firstly would be that Mr William Harrison was travelling at 70.m.p.h. was very fast driving and caused the accident. Mr Harrison secondly had delayed to precede his action for damages due to personal injury, though its not a strong defence to reduce the amounts for damages due to contributory negligence. To consider exactly how much Mr Harrison contributed negligence had been caused the accident is a matter for expert evidence. Therefore, the level of contributory negligence may be in the region of 10%.
Causation:
- Which heads of loss may be recoverable will depend on the chain of causation resulting from each breach. The breaches caused by primarily both (GCF) and (ST) would lead pain sufferings and other losses mentioned by Mr Harrison. The claim can succeed primarily if it can be shown by Mr Harrison that the defendants’ failure ness to maintain the vehicle with reasonable care and skills was the main reason of the accident.
Quantum:
14. In my opinion, Mr Harrison will likely to obtain a substantial amount of damages, his damages fall under two main heads such as special damages and general damages, and under each head of losses there are sub head of losses are considered as follows:
A) Special Damages:
15. The damages fall under the special damages in this case are a) loss of salary b) loss of car c) the school fees d) the loss of private health insurance e) the cost of private sanatorium and f) wife’s loss of earnings.
a)Loss of Salary:
16. It is highly likely in my opinion that the court would award Mr Harrison the net loss of salary.
Salary unpaid date start from 1st June 2001 to 1st November 2003 = 29 months
His net earning was $40,000 p.a. so monthly net salary was $40,000 / 12 = 3,333.34.
Therefore total lost salary until trial is 3,333.34 * 29 months = 96,666.57
b) Loss of Car:
17. I think it is obvious that the Defendants would be held liable to pay the loss of car.
The worth of the car use $5,000 p.a. so monthly is $5000 / 12 = $ 416.66
The total months unused car is 30th Nov 2000 to 1st Nov 2003 = 35 months
Therefore, the total value lost of the car is $ 416.66 * 35 = $ 14,583.33.
c) Loss of School Fees:
18. There is a better chance that Mr Harrison would be able to recover the school fees. I need further information on whether he could mitigate loss of school fees by admitting his son in a less expensive school.
1 t June 2001 to 1st Nov 2003 lost school fees.
The school fees payable annually in advance so 2 years @ $6,000.p.a = $ 12,000.
d) Loss of Private Health Insurance:
19. It is highly likely that the court would consider the private health insurance should be awarded to Mr Harrison.
The total lost months start from 1st June 2001 to 1st Nov 2003 = 29 months
The value of HI $1000 p.a. so per month is $1000/ 12= $ 83. p . m.
Therefore total lost of HI is $83 * 29 months = 2,407.
e) The Cost of Private Sanatorium:
20. The court most likely would consider the cost of private sanatorium $5,150 is too remote because the loss is not within the contemplation of the parties at the time of the accident. In fact, the parties would argue that the loss does not flow naturally from the breach therefore there was no direct casual link between the loss and the breaches.
f) Wife’s Loss of Earning:
21. I think the Defendants would be liable to pay his wife’s loss of earning, though I need further information on whether Mrs Harrison would have mitigated loss and the availability of the mitigation options.
She gave up job from 1st Jan 2001 to 1st August 2001 = 30 weeks 2 days.
Wife’s daily salary is $ 92.p.w / 5 = $ 18.40
Total lost value of Mrs Harrison’s salary 30 weeks @ $92.p.w =$ 2,760 + 2 days @ $18.40 ($38.80) = $ 2,796.80.
B) General Damages:
22. In so far as the claim for general damages is concerned much will depend on the degree and extent to which Mr Harrison may be permanently affected by the injury of the accident. There are mainly two heads of losses such as a) Pain, Suffering and Loss of Amenity (PSLA) b) Future loss.
a) Pain, Suffering and Loss of Amenity:
b) Future Loss:
i) Future Loss of Salary:
ii) Loss of Car
iii) School Fees
Further Evidence and Next steps:
28. It follows that Mr Harrison ‘s claim will be his personal injuries actions. The limitation period for his claim could expire very soon and so it would be expedient to commence the pre-action protocol should a response to a more informal letter before action not produce the desired response. Unless specific Defendants agree to accept their liability, this strikes me as a case, which will not settle. Therefore, proceedings should eventually be commenced in the High Court, as the claim is suitable for the multi track. Notwithstanding, the damages that I have figures for both special damages and general damages total $ 4,000. I expect the total award will not be more than about $ 16000.
29. As I have stated above in my opinion, expert evidence will be required on both the issue of maintenance vehicle if Mr James is not agreed expert by both parties and the medical issue. However, there should be a single expert where possible, and it would be sensible to attempt to seek agreement on who to appoint with the defendants.
30. It might assist instructing Solicitors to have a summary of the further information and evidence referred to in this opinion:
a) Mr Edward James whether he is an agreed expert of the parties and the validity of his report today if the proceedings commenced.
b) The police report on the losing control of the steering wheel.
c) I need further information on both exactly how tightened bearing was and the comments on competency of (GCF) maintenance service from Mr James.
d) It would be realistic approach to get the main papers of the case from other solicitors even if necessary to pay the accrue cost, or possibly manage the copies any other way, because very limited time left to proceed actions.
e) Further assistance from Mr Derek Redfern regarding the accident in detail explanation.
f) Expert evidence on whether Mr Henry Moss felt vibration, heard horn and seen smoke while he was driving.
Abdul Mabud Masum
ICSL Chambers
2 November 2003.