Defense Statement on Behalf of Axsor Insurance

Introduction

As the Claims Officers for Axsor Insurance Co Ltd, and the insurer for Sally Brown, I stand to defend my client in relation to the claim. Of significant to note, is that my client will make monetary settlements for the injuries partly and majorly owing to Peter’s contributory negligence. I am bent of providing certain facts in defense of my client.

First, my client, having caused the accident was accidental and due to the pressure, she received at work, owing to lateness. It is clear that Sally had already fallen subject to a final disciplinary warning, having had 5 previous lateness incidences at work. This then indicates that the whole incidence was not intentional on her side as she was just trying to avoid a disciplinary action at work.

Second, it is significant to take note of the fact that liability has been admitted on Sally Brown fully, yet there is contributory negligence that I allege against Peter. I stress on the fact that the severe head injuries, which Peter had were owing to the fact that he did not wear a helmet whilst cycling at the time the accident occurred. I believe that had Peter wore a helmet, he would have sustained greater head injuries and brain damage when he hit his head on the ground. In line with this, based on a medical report I obtained from Dr. Frank William, he noted that Peter’s brain injuries would not have been so serious if he had worn a helmet. Dr. Frank noted that the concussive forced on to his brain would have been cushioned and he might have well escaped with just a residual memory impairment, and concentration and maybe, temper control. Moreover, also in support of my claim, according to an independent accident reconstruction expert, Dr. Adam Billsley’s report, he made it clear that wearing a helmet would have granted Peter some protection, although limited but against full effect of his head hitting sustaining injuries from hitting the ground. Finally, following the advice of a barrister, Mr. Scott, he referred to the case involving Smith v Finch, where there was an accident between a bicyclist and a motorcycle. The ruling of this case stressed that failure to wear helmets by cyclers on the road poses as a contributory negligence and in an instance where an accident occurs, there ought to be a reduction in the claim. The common law indicates that contributory negligence should be regarded as a complete defense. However, based on the Reform Act 1945 (Contributory Negligence), it is recognized as a partial defense, in which case, courts apportion losses between the involved parties. Overall, it is evident that it is only in an instance where evidence implicates that the victim would have suffered severe injuries regardless of whether he/she wore a helmet or not, that is when full compensation ought to be imposed. However, in this case, medical report indicate that Peter would have sustain some injuries had he wore a helmet. As such, I propose that his compensation claim should be reduced by 35 per cent, owing to the contributory negligence as confirmed by Dr. William, as well as Dr. Billsley.

Thirdly, even though claims are that Peter’s future career will be tampered with and that he would not become an international tennis player due to the injuries he sustained during the accident, I stress that this should be regarded as an unrealistic presumption, especially on the claim that Peter will have a huge income loss. I refute this claim as presented by Peter’s legal representative. However, I acknowledge the fact that Peter may have become qualified in any profession and this could even be in the medical field, yet this is also based on assumptions, as well as circumstantial evidence. I again rebut the claims that have been made by the expert employment consultant, having indicated in his report that Peter’s future earning capacity as an international professional tennis player would be in millions. Even the claim that being a medical doctor, that he would have earned a yearly income of approximately £150,000 and £200,000, it is not evident that his career path would have followed the medical field as this is also a presumption. Besides, even if that is the case, the income should be regarded as too high. Overall, I stress that contributory negligence is still the factor that may have hindered Peter to fulfill most of his aspirations, owing to the fact that the case would have been simpler if he had worn a helmet, as he would have sustained minor injuries that could not have affected him as much as it is claimed.

I acknowledge that based on Mr. Scot’s advice, the likely sum that my client would have compensated Peter on physical and psychological injuries if the case was taken for trial would be as follows: for pain and suffering, and for amenities loss, he would have compensated a total of approximately £120,000 to £140,000. For care costs, he would have compensated a total of approximately £220,000 to £245,000; for a three-bedroom house with significant support that aid Peter and his disabilities, he would have compensated a total of approximately £450,000 to £550,000. Finally, for future earning loss, he would have compensated him an approximate of £4.5 million to £5.75 million as an international professional player or as a doctor, he would have compensated him a total of £2 million to £3.25 million. However, it is evident that the court could have put a consideration to most factors that I have mentioned above, and with detailed consideration to contributory negligence, which would have cut down the compensation fees as predicted by Mr. Scott. This is owing to the fact that the requirements for ascertaining contributory negligence involve providing proof that the claimant failed in taking significant care for the sake of their safety and failure in taking care, thus making it a contributory cause in the suffered damage. Section 1 (1) of the Law Reform Act 1945 (Contributory negligence) notes that in an instance where a person incurs damage, partly owing to his fault and partly due to the fault of another, a claim cannot be defeated on the fault of the individual suffering the damage. As such, contributory negligence is regarded as a partial defense. For instance, in the case of Pitts v Hunt, the court found that the claimant had been 100 per cent contributory negligent. However, it is evident that this was noted to be illogical, based on the provisions of the Act that required that damage should be considered as partly the fault of the parties.

Conclusion

I am seeking a reduction of 35 per cent on the compensation that my client is supposed to pay Peter and this should be because of his contributory negligence. This is owing to the fact that I may be awarded more, for I have enough evidence against Peter on contributory negligence. In this regard, I seek for my client to pay the legal costs involved, the expert fees, as well as other expenses that may be related to this claim and clearly, this should be approximately £145,000 to £155,000. As such, my client should not pay full compensation.

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