DRAFTING
CIVIL ADVOCACY
IN THE STAFFORD COUNTY COURT Claim No ST037750
BETWEEN
JAMES THOMAS BENFIELD Claimant
AND
GORDON(SCRAPMETAL) LIMITED Defendant
CLAIMANT’S SKELETON ARGUMENT
Liability:
- Introduction:
1.1. This is an application for an interim payment and costs under CPR, r.25.1.1(k).
1.2. In support of the application the C will refer to his witness statement (and the exhibits referred to in it) dated 18th Sep 2003.
2.Background:
2.1. The relevant documents are enclosed with the case which are as follows: a) Particulars of claim. b) Defence. C) Application notice. d) C’s witness statement. e) Exhibit JTB1, JTB2, JTB3. f) D’s witness statement by Mr Davies. g) D’s exhibit DSS certificate.
2.2. C’s claim is for an interim payment in the sum of $ 5000, or such other sum as the Court may think fit, as the C suffered injury in the course of employment due to D’s negligence on 6th November 2002.
3 The grounds:
3.1. C believes that if the claim proceed to trial he will obtain judgment against the D’s for a substantial amount of money without any reduction for fault on his part: See CPR, r 25.7(1)(c).
The decision in Ricci Burns Ltd v. Toole (1989) 1 WLR 993 is confirmed by the wording of CPR, r 25. 7(1) ( c), which says that an interim payment may be made if it is shown that the claimant will obtain judgment ‘…. against the D from whom….’the interim payment is sought.
3.2. The D is insured in respect of the claim (r 25.7(2) (a).
4. D’s Defence:
The defendant’s defence in this case that the accident caused or contributed to by the negligence of the claimant: See Defence Paragraph 4.
5.Submission:
5.1. Regarding the issue of torch , the D didn’t provide any torch. The D only mentioned that the main yard could be illuminated by flood lights, but no one showed the C where the switches were located.
5.2. The medical report dated 30/05/03 makes clear that the C has been suffered injury in particular a comminuted fracture to the C’s right upper leg and grazing to his right hand and elbow therefore a true copy has attached to support C’s claim in exhibit JTB1.
5.3. The C has suffered financial losses due to his injury. To support the claim a copy of the Schedule of Past and Future Expenses has attached in exhibit JTB2, which would show the financial losses calculated to 03/07/03.
5.4.The C’s claim was insured with the Trusty General Insurance Co by the D. The insurance company declined to accept the liability and a true copy of the letter from the Insurance company attached in exhibit JTB3.
It is submitted that if this claim proceeds to trial the C would obtain the judgment against the D’s for a substantial sum of money without any reduction for fault on his part.
Quantum:
6. Damages for pain and loss of amenity:
The C has suffered a comminuted fracture of the upper part of his right femur and associated soft tissue injury. Full details of the treatment are set out in Mr Dodhia’s reprot of 30th May 2003.
On the available evidence at present, the D is likely to be recover a sum in the region of $ 9750 for damages for pain suffering and loss of amenity. In order to justify this figure the relevant authorities are given as follows:
a) Judicial Studies Board Guidelines 6th Edition, Leg Injuries, and Bracket C(1): $ 9360- $14660. The C’s injuries probably fall within the lower end of this bracket.
b) Weir v. Smith 20-7-94: Kemp & Kemp Para 12-514. General damages for pain suffering and loss of amenity awarded in the sum of $9500 (now worth $11,495)
c) Peach v. Tesco Stores, 23rd July 1998, Award for pain suffering and loss of amenity $10,000( now worth $10700).
7. Future Loss:
The C claim for future loss for home decoration and maintenance at the rate of $400 per annum. On the assumption that this is a lifelong one and this head of claim would amount to approximately $9,200 (see-Table 19 Ogden Tables).
Therefore, the court would consider an order to be made for the D’s to pay the C the sum of $5000 or such other sum as the court may think fit by way of interim payment.