Skeleton Argument Jonathan Reese v Express Delivery PDF

Preview

Summary

Interim Payment Application...

Description

IN THE HIGH COURT OF JUSTICE

Claim No.

MA22HY293 QUEEN’S BENCH DIVISION MANCHESTER DISTRICT REGISTRY

BETWEEN MR JONATHAN REESE Claimant/Applicant -andEXPRESS DELIVERY LIMITED Defendants/Respondents _______________________________________________________

SKELETON ARGUMENT OF THE CLAIMANT/APPLICANT _______________________________________________________

Introduction

1. The Claimant (“C”) seeks an interim payment in the sum of £40,000.00 under CPR 25.7 from the Defendant (“D”).

Pre-reading

2. The Court is likely to require 75 minutes to read the documentation. The key documents are in bold.

(a) First medical report of Dr Ahmad Azad dated 6 July 2020 (“MR/AA1”); (b) Second medical report of Dr Ahmad Azad dated 19 October 2021 (“MR/AA2”); (c) Medical report of Dr Nicola Preston dated 6 July 2021 (“MR/NP”); and (d) Medical report of Rupert Elliott dated 19 February 2022 (“MR/RE”) (e) Witness statement of C dated 3 August 2021 (“WS/C”); 1

(f) Witness statement of Charlotte Scriven dated 6 November 2021 (“WS/CS”) (g) Witness statement of James Anand dated 3 August 2021 (“WS/JA”); (h) Witness statement of Daniel Gibson dated 5 October 2021 (“WS/DG”); (i) Witness statement of Adam Bukowski dated 6 November 2021 (“WS/AB”); (j) Witness statement of Janelle Daniels dated 5 January 2022 (“WS/JD”); and (k) Particulars of Claim dated 18 September 2021 (“POC”);

Primary and Secondary Sources

3. Gibbons v Kahl [1955] 3 All E.R. 645 (duty of a driver to stop before getting to a crossing: retrieved from Wilkinson's Road Traffic Offences 30th Ed); 4. Lockie v Lawton [1960] 124 J.P. 24 (a driver approaching a crossing must be able to stop: retrieved from Wilkinson's Road Traffic Offences 30th Ed); and 5. Scott v Clint, The Times, 28 October 1960 (liability of a driver: retrieved from Wilkinson's Road Traffic Offences 30th Ed).

Factual Background

6. On 1 March 2019 around 11:45 am, C was struck by a transit van with the registration number MA 16 WWS (“the van”) while using a puffin crossing in Old Trafford, Manchester. 7. The van was driven by Daniel Gibson (“the driver”) who, at all material times, was an employee and / or agent of D.

8. The claim relates to general damages and consequential losses arising out of the negligence of the Defendant, its employees and/or agents acting in the course of their employment and/or agency (exhibited at POC).

9. Amongst the claim advanced by C include:

(a) General damages and non-loss of earnings, totalling £48,284.80; (b) Past loss of earnings, totalling £51,097.15; and (c) Future loss of earnings, totalling £523,214.06.

2

Common Ground

10. The following appears to be common ground:

(a) C was struck by the van while using a puffin crossing on 1 March 2019 around 11:45 am; and (b) The driver was driving the van in the course of his employment.

Issues in dispute

General damages and non-loss of earnings

11. C’s position is as follows in relation to general damages and non-loss of earnings suffered: (a) bodily injuries suffered (MR/AA1, page 3); (b) effects from injuries (MR/AA2, page 3; MR/RE, page 4); (c) emotional distress (WS/C, para 11; WS/JA, para 9; WS/CS, para 9); and (d) £40 x 10 physiotherapy sessions to date (WS/C, para 21; MR/RE, para 3.8).

Past loss of earnings

12. C was unable to return to work until 6 months after the accident ( WS/C, para 17; MR/NP, page 2). Upon resuming his work, C was only able to work for 3 days per week as a direct result of the injuries sustained in the accident ( WS/C, para 18; WS/CS, para 7).

13. Prior to the accident, C earned £3,611.62 net per month ( WS/CS, para 8). This amount was reduced to £2,334.80 net per month after the accident (WS/CS, para 8).

14. Consequently, the annual wages of C have been drastically diminished from £60,000 gross to just £36,000 gross (WS/C, para 18).

Future loss of earnings

3

15. Due to the permanent side effects of the injuries sustained ( MR/AA2, page 3; MR/RE, para 6.4), C will only be able to work 3 days a week for the rest of his career.

16. This will undoubtedly affect C’s gross income and disposable income, as well as any personal savings capacity of C.

Application for Interim Payment

17. CPR 25.7 sets out the test for obtaining an interim payment:

“25.7… (1) The court may only make an order for an interim payment where any of the following conditions are satisfied – (c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim … (4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. (5) The court must take into account – (a) contributory negligence.”

The claimant would obtain judgment 18. On the day of the accident, C was wearing a yellow long sleeved running shirt (WS/C, para 5; WS/AB, para 6). The nature of such bright colour meant that C would clearly be visible to any layperson.

19. Although the traffic lights were green for the vehicles coming, it is submitted that the driver still had a duty of care to keep an adequate lookout for pedestrians in its immediate vicinity.

20. Paragraphs 6-176 and 6-177 (citing Gibbons v Kahl; Lockie v Lawton and Scott v Clint) of Wilkinson's Road Traffic Offences 30th Ed provide further commentary.

The claimant would obtain judgment for a substantial amount of money

4

21. In the event that C succeeds in establishing all of his claims at the main trial, he stands to recover a sum of £622,596.01.

22. A breakdown of C’s claims is as follows:

(a) General damages and non-loss of earnings, totalling £48,284.80; (b) Past loss of earnings, totalling £51,097.15; and (c) Future loss of earnings, totalling £523,214.06.

23. If the court at the main trial decides that the quantum of claim sought is offset by contributory negligence, C would still be entitled to recover at least £82,783.29.

24. It is submitted that these sums fall within the definition of ‘substantial’ as envisioned in the relevant procedural rule.

Reasonable proportion 25. There appears to be no procedural rule of guidance in respect of what amounts to a ‘reasonable proportion’ of sums recoverable.

26. By reference to the overriding objectives of the CPR, the court is invited to exercise its inherent jurisdiction to consider whether the sum of interim payment sought is fair, reasonable and proportionate.

27. With C expected to recover a sum between £82,783.29 and £622,596.01, it is submitted that C’s prayer for an interim payment of £40,000 is justified, reasonable and proportionate.

28. In any event, the amount of interim payment sought does not exceed 50% of the eventual compensation that C may recover, whether or not as of right.

Contributory Negligence 29. It is C’s contention that any evidence of contributory negligence is insufficient to preclude an order for interim payment.

30. If the court finds that liability is apportioned by negligence on the part of C, C remains of the view that an order interim payment of £40,000 is reasonable 5

31. The court is reminded that any potential finding of contributory negligence should not have the effect of frustrating this application for interim payment or precluding a meaningful recovery of the same.

Conclusion

32. For these reasons, C requests that the court grant an order for interim payment in the sum of £40,000.

C WOLFENDEN KINGSGATE CHAMBERS 20 OCTOBER 2021

6...