RE JESSICA JAVA- FULL OPINION-DAMAGES-CONTRACT PDF

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This full opinion details liability of a competent person, damages, contract, negligence and evidence required to substantiate a claim....

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RE: JESSICA JAVA _________________ OPINION __________________

1. I was asked to advise Miss Jessica Java on liability and the potential value of award for general damages in respect to the claim against Mr Timothy Legg. Also, I was asked to advise on whether litigation is a desirable course to proceed with considering Miss Jessica Java is in the midst of her college studies. Lastly, I was instructed to advise on the pain, suffering and loss of aei (PSLA) fige accdig  he iie Mi Jaa had ffeed. Summary of Facts 2. Mi Jeica Jaa (Mi Jaa) i a 16 ea d, ih-form student who aspires to become an international show-jumper. On the other hand, Mr Timothy Legg (M Legg) i a professional in show-jumping and has been the England representative for international show-jumping championships. 3. M Ade Jaa (M Jaa), he fahe f Mi Jaa a ee  ig his daughter in her ambition and interest in advancing her career as a professional show-jumper. Mr Java engaged Mr Legg to provide Miss Java show-jumping lessons at a rate of £90 per hour. The agreement was made orally over a telephone conversation and Miss Java was financing all the lessons at her own expense. 4. On 19 April 2020, Miss Java and Mr Legg went to Meadow Farm, a neighbouring land to Forge House for their usual training session. During the training, Miss Java had purported to jump over the hedge next to a gate with her pony, Thunderbolt, after being prompted by Mr Legg to keep up her speed. The jump attempt failed and Miss Java was thrown off and fell from her horse. A a e f he fa, Mi Jaa ffeed a Ce face to the distal right radius and superficial cuts and soft tissue injuries. Summary of Advice 5. In my opinion, there is a good prospect (60% to 80%) of success in establishing a beach f a e f he cac f M Legg faie  eecie reasonable care and skill when coaching Miss Java. 6. There is also a good prospect (60% to 70%) of establishing liability in tort of negligence against Mr Legg, taking into account a possible finding of contributory negligence against Miss Java, which should be approximately 15%-20%. 7. According to the evidence made available to me, I am in the opinion that the award for PSLA is likely to fall within the region of £6,500 or less as it is an

cicaed Ce face a caified i he Jdicia Cege Gideie, 15th edition. However, this is subject to any findings of contributory negligence which may reduce the award accordingly. Liability Breach of contract 8. To successfully bring a claim for breach of contract, it must first be established that there is a contract between the parties. From the evidence before me, it appears that there was a clear offer, an acceptance and consideration made during the telephone conversation between Mr Java and Mr Legg. 9. However, it is anticipated that Mr Legg may argue that there is an absence of an intention to create legal relations with Mr Java. It could be argued that the cachig e ee gie ee a a fa  he a fied daghe. A opposed to a commercial contract, the law on social arrangement raises a presumption that parties do not intend to create legal relations but this is rebuttable by evidence to the contrary. 10. The agreement was made orally, without any written evidence to its support, Although there is no requirement in law for the contract for services to be in writing, it would be helpful to have more documentary evidence to prove the existence of the contract such as a written account on how the acceptance was conveyed by Mr Java, any invoice or receipt for the payment of £90 to Mr Legg. Should there have been any witness present during the telephone conversation, this would be helpful in confirming the contract between the parties. 11. Although the agreement was not made by Miss Java but by Mr Java, this is ie  deie Mi Jaa igh  efce he contract. Under section (1)(1)(b) of the Contracts (Rights of Third Parties) Act 1999, a third party, who is Miss Java in this case, may enforce the term in a contract if the term purports to confer benefit to her. The agreement here was made solely for Miss Java to learn show-jumping from Mr Legg. The fees were also paid by Miss Java at her own expense. Therefore, she could enforce the contract in her own right (s.1(3)) so far as she has been expressly identified when the agreement was made. 12. As the agreeme a ade i M Jaa ea caaci a a fahe, hich falls wholly outside his business or profession, the contract is one of personal interest. The Consumer Rights Act 2015 (CRA 2015) will apply to this case. It is unlikely to be disputed that Mr Legg is a trader under CRA 2015 as he was providing the service relating to his profession as a show-jumper (s.2). The Agreement is a contract to supply service to Miss Java, namely to coach her on show-jumping techniques at competitive level. Also, from the evidence available, there is no clause that exclude liability.

Express Terms 13. By an oral agreement, Mr Andrew Java and Mr Legg agreed to show-jumping coaching sessions for Miss Java for £90 per hour. 14. It is unlikely that these express terms will be disputed by Mr Legg. In any case, Miss Java does not rely on any of these terms to establish liability. Statutory Terms 15. Given that this is a contract under the Consumer Rights Act 2015, the contract will have statutory implied terms that: (a) Mr Legg would perform the coaching service with reasonable care and skill as according to section 49; (b) Anything said by Mr Legg about his competence or expertise is a term of the contract as per section 50(1). 16. In my opinion, there is a good prospect of establishing the implied term that Mr Legg would provide the lesson with reasonable care and skill. Mr Legg is a very competent show-jumper who has won many international championships. Therefore, it is reasonable to expect a high level of care and skill from him when he was coaching Miss Java. It would be useful if my Instructing Solicitors could inquire as to whether Mr Legg held himself out as having to Mr Legg and whether Mr Legg had any previous coaching experiences before. 17. There is a potential argument that the competence or expertise of Mr Legg could be a binding term of the contract (s50(1)). If it could be proven that Mr Legg did expressly represent himself as an expert in providing coaching or state that he will take care in ensuring Miss Jaa afe he idig e, which was then relied upon by Mr Java in entering the agreement, this could become a statutory term of the contract. It would be helpful if my Instructing Solicitors could find out how Mr Java came about to know about Mr Legg and his achievements. Liability in Negligence Duty and Standard of Care 18. For Miss Java to bring a claim in tort of negligence against Mr Legg, she has to first establish that there is a duty of care owed by Mr Legg to her. The test to be applied is the 3-staged test in Caparo v Dickman [1990] UKHL 2. In this case, Mr Legg as a coach for Miss Java is likely to have sufficient proximity to her and by virtue of this status of his, it is fair, just and reasonable to impose a duty upon him to take reasonable care when coaching her, including providing proper lesson in a safe and secure environment. It is foreseeable that if the lesson is not provided with reasonable care, Miss Java as a minor, is not capable to competently assess every training scenario and will foreseeably injure herself.

Breach of Duty of Care 19. In my opinion, thee i a gd ec f eabihig he beach f M Legg duty of care owed towards Miss Java. The incident happened when the lesson took place. Instead of asking her to slow down, Mr Legg told her to keep the speed up. 20. The injuries were results fro M Legg faie act according to his duty of care during the training. Although Miss Java has some experience in competing and had been training for about 6 months, her judgment is comparably lower than M Legg. She a heia befe ig e he hedge b M Legg statement of ee he eed  had gie a be hich h he bed her capability and to jump over the hedge without having time to properly assess the height. Mr Legg should have inputted his professional judgment as a coach on using short-cuts road. He should not have encouraged Miss Java to speed up in a foreign training ground. 21. As mentioned before, it would be helpful to have a fuller account of the incident from Miss Java to ascertain what exactly was said by Mr Legg to her, the details or condition (i.e. height, width) of the hedge and the height of her pony.

Contributory Negligence 22. I anticipate that Mr Legg will raise a defence of contributory negligence. It is likely that the court may find some degree of contributory negligence against Miss Java. 23. F he ee daed 24 J 2020 e b M Legg ici, i a eied ha Mi Jaa hee fe ff dig he fa de  i  beig ece fastened. Miss Jaa aee a ae ha he decided   e he hedge. Although this does not constitute a strong defence as to break the chain f caai, a c a fid e degee f fa  Mi Jaa a f failing to look after her own safety, which includes her action of not slowing down before jumping over. Her young age is unlikely to diminish the reduction as seen in Phetheam Hubble v Coles [2012] EWCA Civ 349, where the 16year-old boy was treated as if he were an adult when the court was determining the reduction for contributory negligence. 24. On the basis, I estimate the assessment of contributory negligence to be around 15%-20%. Miss Java did wear the helmet but merely failed to fasten it securely, The injuries on the right distal radius was not aggravated because the lack of fastening of the helmet. Her action of not stopping from jumping over the hedge a i ai caed b M Legg ecagee  eed .

Pain, Suffering and Loss of Amenity 25. I am also instructed to advise on the quantum for general damages for PSLA based on the Medical Report by Mr Paul Cooper, a Consultant Orthopaedic Surgeon, dated 21 August 2020. Mr Cooper examined Miss Java approximately 4 months after the incident in April 2020. 26. Accdig  he edica e, Mi Jaa -ray examination confirmed a Ce face  he dia igh adi. The right radius was manipulated under general anaesthetic and she was admitted for a night. A plaster cast was applied over her right wrist and was subsequently removed after 6 weeks. Miss Java suffered from difficulties with writing due to persistent stiffness in the right wrist. She was advised by the General Practitioner to carry out gentle exercises and to use analgesics when necessary. This residuary stiffness was resolved within 3 months of the accident. 27. In my opinion, according to the Judicial College Guidelines, 15th Edition, Chapter 7 Orthopaedic Injuries, Mi Jaa iie ae ie  fa ihi Category (H) Wrist Injuries, sub-category (e) An uncomplicated Colles' fracture. Miss Java could be granted in the region of £6,970 for her injuries. 28. The fracture did not leave her with a prolonged recovery period therefore her case would not be suitable to be classified in the next higher category. However, the fracture was not so minor or minimally displaced that it subject it to the next lower category. I Mi Jaa cae, he ica daage aaded for a Ce face fa ihi he egi f 5,000  7,000. 29. In Guthrie v Hampshire County Council [1995] Kemp, the claimant suffered a Ce face f hi igh i and had various lacerations to his lower body from falling off his motorbike after hitting a manhole cover on the road. His wrist was placed in plaster for six weeks. The court awarded him £3,500 for the fracture. After taking in account RPI and the 10% Simmons v Castle uplift, this would be worth £6,871.58 in PSLA damages today. 30. I  ii, he c i ie  fid Mi Jaa cae similar or marginally more serious than Guthrie v Hampshire County Council. The 21-year old man, ie Mi Jaa aied a Ce face  he right dominant hand. Guthrie, however, had scarring to his lower body after the accident. Setting this aside, Mi Jaa iie had a direct impact on her ability to write whilst there were  fcia be ih Ghie i. Theefe, he c cd aad Miss Java in the similar region or higher. 31. In Maxim v Indelicato [1994] Kemp, he caia ffeed a Ce face  right lower radius, severing of the tendon of the right index finger and abrasions to other fingers from a road traffic accident. Her wrist was put in plaster for six ee ad dee hihea f i h. The caia dai activities were problematic to carry out and her sleep was disturbed. The court awarded her a total of £7,500 with £2,500 accounting for the Colles fracture.

After taking in account RPI and the 10% Simmons v Castle uplift, this would be worth £5,084.66 in PSLA damages today. 32. I  ii, he c i ie  fid Mi Jaa cae agia e ei than Maxim v Indelicato as the claimant suffered more severe injuries from the accident. In addition to the fracture and abrasions, Maxim had to undergo 6 months of physiotherapy to fully recover. Maxim was also awarded damages for shock from the accident which indicates a more severe accident. Besides the fracture, Mi Jaa iie were minor and required no further treatment. However, the fact that Miss Java is a sixth form college student who was unable to write for 3 months may be a significant factor to be taken into consideration. 33. In my opinion, Mis Jaa cae i e ei ha Guthrie but less serious then Maxim. On this basis, I would advise that Miss Java is likely to be awarded a a i he egi f 6,200 f he cicaed Ce face. I would be helpful if my Instructing Solicitors could obtain more information on how long Miss Java was required to be absent from school and the period she was advised to refrain from training for show-jumping. Conclusion and next steps 34. Throughout this opinion, I have suggested that further evidence should be baied  eghe Mi Jaa cai. F eae f efeecig, I hae summarized the evidence below:(i)

(ii) (iii) (iv)

(v) (vi) (vii) (viii)

Statement from Mr Java on the contents of the telephone conversation, circumstances where the conversation took place, how and when acceptance was conveyed to Mr Legg; Any invoice or receipts for the payment of fee to Mr Legg; Witness statements from any potential witnesses present to the telephone conversation; Further information on how Mr Java came to know about Mr Legg and his achievements and the way Mr Legg represented himself over the telephone; A more detailed account of the incident from Miss Java, especially on what Mr Legg had said to her during the training; More details on the condition, height and width of the hedge; Information on the period Miss Java was required to be absent from school due to her injuries; The period for which Miss Java was advised to refrain from riding horses and to train for show-jumping.

35. A letter of claim should be prepared and sent to Mr Legg once the evidence listed above has been gathered. It is worth to check Mr Legg is a member of any trade union or association, and if so, whether it offers ombudsman or arbitration scheme as an alternative to court proceedings. If so, it should be established whether the award could include consequential losses and legal costs that would be recoverable in court proceedings.

36. In the event that this does not work out, another course of ADR such as mediation or negotiation may be appropriate for this dispute. Miss Java should be brought to attention that the court might be penalized parties in costs if they do not consider attempting to resolve case outside of the court where possible. This could be an advisable course of action to take as Miss Java is still a schooling student. 37. I trust that this Opinion could assist Miss Java and my Instructing Solicitor. If any aspect of it requires clarification, please do not hesitate to contact me through my clerk. Alicia Barrister 3 Paper Buildings, Temple, London 10 December 2020...