LEE W

and

CARL H and T**** FREIGHT LTD

1996 W No 284

1. Mr Lee W was born on the 25^th April 1969 and so was 25 at the date of the accident on the 14^th September 1994. He is now 30.

   PRIMARY LIABILITY

2. It was agreed between the parties that, on the day of the accident, the Defendant drove his lorry down the street in which the Claimant lives, on his way to make a delivery at premises nearby. According to the Claimant, the lorry was going too fast, and it hit the wing mirror of his car as it went past. He was annoyed, and therefore followed the lorry, which by then was parked. He knocked on the window, and asked the driver, the Defendant, "what the bloody hell he was doing". After a short conversation, the Defendant drove off in the lorry, driving over the Claimant as he did so. The Defendant's version of events was that the Claimant had been aggressive and that he, the Defendant, had behaved meekly and mildly, but the real flavour came from the Defendant's interview with the police, in which he showed his true unpleasantness. He thought that his speed (30 to 35 mph in a residential street double parked with cars) was acceptable, and that he alleged that the Claimant was aggressive and threw a punch at him, causing him to drive off immediately, over the Claimant.

3. The Defendant was convicted of careless driving, but that conviction was said in the Defence to be irrelevant!

   CONTRIBUTORY NEGLIGENCE

4. It was alleged that the Claimant was negligent in
   1. losing his temper and punching at the Defendant

   2. placing himself in the Defendant's blind spot (it was difficult to see how this could be so, because the Defendant agreed that it was the front offside wheel which ran over the Claimant)

   3. failing to get out of the way

   4. acting in that manner when he should have realised that "his behaviour and aggression would or was likely to cause the First Defendant to drive off, to fear for his own safety or to fear for the safety of his load".

5. We were obviously bound to succeed on primary liability, but contributory negligence was more difficult. I felt that we would win that issue also, because the judge was likely to find that the Defendant had driven straight at the Claimant, no doubt expecting him to get out of the way.

   QUANTUM

6. The Claimant sustained a crush injury to the left foot and a fracture of the left big toe, multiple rib fractures, a fracture of the shoulder blade and fractures of the right forearm. His left lung was damaged significantly and he required a tracheostomy for six weeks. His spleen had to be removed. He had a difficult recovery period. About a year after the accident, the Claimant was still suffering significant symptoms.

7. It was agreed that the Claimant would be able to resume most normal activities, although he may have pain and /or breathlessness on strenuous exertion.

8. Splenectomy increases the risk of septicaemia.

9. In addition to the physical problems, the Claimant suffered a range of difficulties (pain and psychological) since the accident, which had not been present beforehand. There was a diagnosis of Post Traumatic Stress Disorder, which was agreed, in addition to which there was a secondary depression, which was still disabling at April 1996, but not by September 1997. Full recovery was expected on completion of this litigation.

10. Turning to the effect of the injuries on the Claimant's work, he was employed as a tanker driver before the accident. He returned to work on the 20^th April 1998, but earning only the basic wage without overtime. His partner left him on the 7^th August 1998, so that he then had to look after the children, but he stayed at work until the 9^th October 1998, when he was made redundant. He then took a part-time job, where he stayed until the 14^th May 1999, when he returned to full-time.

11. The following main issues were likely to arise.
    1. The amount of the annual loss of earnings suffered by the Claimant, both before and after the accident. The wage loss was based on a comparator, but the Claimant felt that the earnings of the comparator were lower than the Claimant would have earned.

    2. The effect of the Claimant's partner leaving him with the children. It may have been argued that he would have been unable to work in those circumstances, but it seems that he managed in fact, despite his injuries.

    3. Whether the multiplier discount rate should be 3% or 2%. The House of Lords dealt with this issue in Wells in July 1998, setting the rate at 3%, but the argument, based on the recommendations of the Ogden Working Party, is that, because the Lord Chancellor has not set the rate, as empowered by statute and desired by the Judicial Committee, it is now open to the Court to do so. If that is so, it is plain from the recommendations of the Working Party (which includes the Government Actuary) that the rate should be 2%.

    4. Whether there should be an award to reflect the fact that the Claimant would be at a disadvantage on the labour market if he were to lose his present job.

12. The Defendants offered £350,000 the week before trial, which the Claimant accepted.

22 November 1999