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September 2009 Case Law Reports by Siobhan Thomas

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Morgan v Enterprise Plc

The Claimant, a 36 year old man, received £10,000.00 for a knee injury sustained during the course of his employment in October 2005. The Claimant was working as a recycling collector for the Defendant when he was injured by an exploding wheel from a recycling lorry as he walked behind it. Liability was admitted.

The Claimant sustained a torn ligament in his right knee. He was unable to work for 4 months after the accident. He was given intensive physiotherapy but continued to suffer from anterior knee pain and his knee gave way on occasions. He required an arthroscopy and was absent from work for a further 7 weeks. He had fully recovered from his injury within 18 months of the accident.

Burrows v Royal Mail Group Plc

The Claimant, a 45 year old man, received £1,339.00 for neck and shoulder injuries sustained in a road traffic accident in November 2008. During the course of his employment the Claimant was travelling in the front passenger seat of the vehicle owned by the Defendant and driven by another employee. The driver failed to stop at a give way sign and collided with another vehicle.

The Claimant sustained a whiplash injury to his neck and soft tissue injuries to the right shoulder. He was shocked and upset for between 2 to 3 hours. He fully recovered from the whiplash injury within 2 to 3 weeks and the shoulder injury had fully settled within 5 weeks.

Lockheed Martin Group v Willis Group Limited

Shortly before the limitation period expired the Claimant brought proceedings against a Bermudian company. It was explained to the Claimant that valid service could not be affected in London and that the Defendant company was not in existence when the Claim Form was served. By then the limitation period had expired. The Claimant applied without notice and obtained an order substituting the Defendant for 2 English companies within the group. One of those companies applied to set aside the order on the basis that there was no mistake by the Claimant as to the name of the party being sued because insufficient thought had been given by the Claimant about who to name before the Claim Form was issued.

It was held that to come within CPR R19.5(3) the mistake had to be as to the name of the company and not as to the identity of the party. Such a mistake could be demonstrated where the pleading gave a description of the party and identified the party that gave the party the wrong name. In such circumstances, a “mistake as to name” was given a generous interpretation. Given the generous test of mistake, it could be said that the Claimant made a mistake as to name rather than identity. However the second limb of the test, that had the mistake not been made the new party would have been named in the pleading, was not satisfied. It was not possible to conclude that one Defendant was named in mistake for another. The latter was not a holding company. The mistake was misleading to the other party and caused reasonable doubt as to the identity of the party who was intended to be sued. As a matter of discretion, the court would not have allowed the substitution. The difficulty in identifying the proper Defendants largely arose because of the lateness of the instructions to the solicitors almost at the end of the limitation period. There was no explanation as to what had happened in the 6 years from the date of the settlement. The Defendant was unaware of the claim until after the expiry of the limitation period and in the circumstances the court was not minded to permit substitution. It was also significant that the Claimant had not been able to formulate particulars of claim at the time when the Claim Form was issued.

Shephard v Jennings and Royal and Sunalliance Insurance Plc

The Claimant, a 63 year old woman, received £35,504.00 after sustaining foot injuries in a road traffic accident in July 2007. The Claimant was represented by MyClaim Ltd. She was driving her car when the First Defendant collided with her car head on. The Second Defendant was the First Defendant’s motor insurer.

Liability was admitted. The Claimant sustained a fracture of the second and third metatarsal and tarsometatarsal joints. She was unable to weight bear for 3 to 4 months after the accident and experienced pain. She was unable to play golf for 6 months. She underwent physiotherapy, used orthotic sole inserts and regular analgesia which alleviated her symptoms.

Approximately 3 years after the accident, the Claimant’s symptoms persisted although she had returned to playing a full game of golf by approximately 2 years post accident. The symptoms were expected to be permanent and she was advised that in between 5 and 10 years she may require an operation to fuse the metatarsal and tarsometatarsal joints of her right foot if the pain became worse.

Breakdown of General Damages…. Pain, suffering and loss of amenity £20,000.00, cost of operation to fuse foot joints £5,000.00, future cost of replacement orthotics £1,000.00, future care costs £2,000.00. Breakdown of Special Damages… past care costs £4,000.00, past medical treatment £3,000.00, past miscellaneous expenses £504.00.

Tom King v Michael Gibbs

The Claimant, a 41 year old man received £1,200.00 for neck injuries sustained in a road traffic accident in July 2009. Immediately after the accident the Claimant was shocked and suffered acute neck pain. He saw a paramedic at the accident scene and attended hospital where he was examined. He took paracetamol for the pain and underwent 3 sessions of physiotherapy.

The Claimant was absent from work for 3 days after the accident. He remained anxious for 2 to 3 weeks but fully recovered from all injuries within 4 weeks from the date of the accident.