Miss H was was attending a paint-balling event with friends in Surrey. Whilst standing in the safety zone for a briefing one of the employees of the paint-balling company demonstrated how to let of a smoke bomb. In doing so some of the material from the smoke bomb struck Miss H’s chest and because of the pain she flung her head forward and suffered a whiplash injury to her neck and burns to her chest which left some scarring.
Ms H wanted to claim personal injury compensation for her injuries so she instructed Hayward Baker Personal Injury Solicitors to pursue her claim. Once a member of Hayward bakers legal team explained in easy to understand terms how a personal injury claim is run, she signed the relevant paper work for Hayward Baker Solicitors to act on her behalf.
Once Hayward Baker had received the signed paperwork back they wrote to Miss H attaching a copy of her signed Conditional Fee Agreement and explained what was to happen next. Her solicitor sent a letter of claim to the other party. This letter provides the other party with all the necessary information to enable them to consider Miss H’s claim, in particular detailed allegations confirming why it is believed they are to blame. The allegations were as follows:
You have been negligent and in breach of the statutory duty you owed our client as a lawful visitor to your premises. In particular you allowed a demonstration of a smoke bomb to take place when it should have been obvious that our client was standing too close. You failed to carry out any or any suitable risk assessment where the distance between employees and customers during a demonstration would have been highlighted and remedied prior to the accident. Had you done so then you would have ensured that employees were trained to make sure customers were standing at a suitable distance prior to the commencement of the demonstration, failing which we hold you vicariously liable for the acts of your employees who carried out the demonstration when they knew of ought to have known that our client was standing at a distance likely to put her in danger. You have therefore exposed our client to a foreseeable risk of injury.
The other party did not respond to Hayward Baker letters besides numerous chaser letters asking them to confirm their insurers details and to pass a copy of the letter of claim to them. Telephone calls were made chasing for a response and eventually Hayward Baker were asked to send copies of all previous correspondence to the other parties main office. Even after providing the information requested the other party still did not respond to the letters for nearly two months and when they did they stated in writing they would not send copies to their insurers until they ascertain what or if anything happened. Hayward Baker responded by sending a copy photograph of the event and describing Miss H so she could be identified in the photograph and named and described the lady who set off the smoke bomb and that she provided Miss H with free paint balls by way of an apology.
The other side wrote back stating that liability was denied after considering the photo which was taken in the afternoon and therefore several hours after the alleged incident. She was happy to pose for the photograph and did not appear to be unhappy or in any discomfort. The other party were self insured for up to £35,000.00 and would not be referring this matter to their insurer. They intended to defend the case fully in court if necessary.
Hayward Baker noted the denial of liability and reminded the other side that under section 3.10 of the personal Injury Pre Action Protocol they were to provide documents in their possession which are material to the issues between both parties, and which would be likely to be ordered to be disclosed by the court. Hayward Baker then reminded them of the documents that were detailed in the schedule attached to their letter of claim.
Finally, Hayward Baker noted that the other party consider the claim to be “dubious”. If they are alleging fraud then this will inevitably be allocated to the multi-track if they are forced to consider issuing court proceedings. This will mean an escalation in costs and in this case costs are likely to escalate beyond the £35000 self- insured limited stated within the other parties letter. If this is the case Hayward Baker made it clear at this early stage that we will be seeking costs on an indemnity basis should the claim be successful to avoid any arguments over proportionality due to the serious allegation of fraud which the other party seem to be suggesting.
Miss H was informed in writing of the denial of liability but her solicitor could not advise her on the strengths and weaknesses of her claim until they had received the requested document s from the other party.
21 days had passed and there was no response from the other party regarding disclosure documents . Hayward Baker now asked that disclosure be dealt with by return and failure to do so within 14 days they will make an application to the court pursuant to Part31.16 of the Civil procedure Rules for pre action disclosure.
The other party wrote back and stated there was no accident reported as per the copy accident book record (enclosed). There was no other incident of this type reported over the last 23 years. A copy of employee training was sent along with copy of the smoke bomb manufacturers instructions and a copy of the smoke grenade risk assessment.
Miss H was informed of the documents and that liability was firmly denied. The other party had also confirmed there was no CCTV footage and enclosed two witness statements from staff confirming that no accident was reported.
Miss H was informed by her solicitor of the law which is applicable is the Occupiers Liability Act 1957. This places an obligation upon the occupier to take such care as in all the circumstances that the visitor will be reasonable safe in using their premises. To succeed with a claim we would have to be able to prove that the other party fell below this required standard of duty. Her solicitors will therefore need to be able to prove through witnesses that the accident happened as alleged and that occurred because the defendants breached their duty of care.
Miss H was asked to contact her potential witnesses and ask that they call her solicitor. Once her solicitor has prepared their statements they will be in a position to respond to the defendant (as well as asking for details of their insurers).
Her solicitor also enclosed all of the safety documentation which has been received. Miss H’s solicitor asked if she could read these carefully and provide her comments. In particular what equipment was she provided with and was this before (if so was she using it) or after the demonstration and how far was she from the employee when the smoke bomb was lit.
The paint ball company did not deal with disclosure documents fully so Hayward Baker write to Miss K explaining that they will still apply to the court for an order for the other party to deal fully with disclosure.
Unfortunately they have not been able to obtain any response from the other party for some time now and Hayward Baker are still unaware whether or not they have any insurers. Hayward Baker have also, so far, been unable to ascertain their correct legal identity meaning that it would not normally be possible to issue Court proceedings against them. However, as a final attempt to obtain some information they are now going to issue a ‘pre action disclosure’ application against the other party. . The court may reject the application on the basis that other party is not a legal entity and if it is rejected, they doubt that they will be able to proceed any further with Miss H’s claim. If however the court considers the request favourably and if the company is ordered to release information to Hayward Baker , it may yet be possible to continue with the claim.
A hearing date should come through in a few weeks time, and once Hayward Baker receive it they will let Miss H know. She does not need to attend as her solicitor will do so on her behalf.
Whilst writing Miss H’s solicitor also pointed out that full Court proceedings must be issued on her behalf before the 12th May (the third anniversary of the accident) this year if they are going to pursue the claim for her. Failure to do so would mean that she would lose her opportunity to pursue the claim due to the strict time limits which apply. At present her solicitor cannot justify issuing full Court proceedings due to the problems involved with this claim. They will however (as mentioned above) issue a ‘pre action disclosure application’ and they can reconsider whether or not full Court proceedings can be issued after that application has been dealt with. Miss K was also informed that it is possible that Hayward Baker may not be able to proceed much further with this claim for her, depending upon the outcome of the application they are now making.
The documents that Hayward Baker wanted the other party to disclose were as follows:
- Public liability insurance certificate covering the date 12/5/20122.
- List of names and addresses of owners and/ or Directors of the company
- Confirmation of the legal status of the defendants company Confirmation of any parent company of Delta Force, to include the parent company’s full name, legal status and address .
A hearing date was given by the Court and Miss H’s solicitor attended on her behalf. Whether the application would succeed is not yet known as the paint ball company is not a legal entity.
Just before the hearing Hayward Baker disclosed to the other side their statement of costs for the summary assessment in readiness for the forthcoming hearing.
The other side were informed that should this matter be capable of settlement prior to the hearing Hayward Baker confirm that they can of course agree to deduct the cost of waiting and attending the hearing although the Consent Order fee will then become payable.
The other side were asked to kindly acknowledge receipt and confirm that they have passed a copy of this letter and the Statement immediately to their insurers
The other side contacted Hayward Baker and said all the information they wanted was a matter of public record and was on their website. However her solicitor stated that it was not at the time when this information was requested. Hayward Baker attending the hearing and the judge at the hearing found that the other d should have provided this information months ago and therefore also confirmed that the company should meet the costs incurred making this action.
Miss H’s solicitor informed her that they now have the information to continue with her claim. However, as an ‘aside’ comment the District Judge did comment on the photograph of Miss H which was apparently taken later in the day of the paint-balling and which appears to show her looking happy and healthy. It was not appropriate for the Judge to comment on the merits of pursuing an injury claim at the hearing because that is a question for another day however, the simple fact that he mentioned the photograph does cause Hayward Baker some concern as it would suggest that he puts a degree of importance on that photograph.
Miss H ws asked to ring her solicitor as soon as possible to discuss the photograph which does appear to show her looking happy and healthy on the alleged accident date? Her solicitor also need to understand how the hot material managed to burn her given that she was wearing a t shirt and a hoodie.
Hayward Baker need to make a decision as to whether they can proceed with her claim and this decision needs to be made very quickly so please could she call her solicitor soon as possible.
When Miss H did ring her solicitor she explained that the photo was taken seven hours after the accident. It was her 22nd birthday and she missed the day of paint-balling and tried to at least join the last game but due to the pain she was unable to do so. She managed 5 minutes of one game and even gave 1000 paint-balls away as she didn’t play any of the other games.The other side tried to compensate her with free paint balls but she also gave those away .
Miss H’s solicitor queried how she came to be injured if she was wearing several layers of clothes. Miss H says that she likes baggy hoodies and she had had a gap between her neck and the hoodie. The woman with the smoke bomb was above her when setting off the smoke bomb and the provided overalls don’t button up all the way to the neck but just about the top of the chest. The area was crowded and was outside the safety zone. Miss H’s GP gave her the whiplash prognosis when she went to her doctors for treatment. Her solicitor confirmed that they would press ahead with the claim.
The cheque for the cost of the court hearing was paid by the other side and receipt was acknowledged by Hayward Baker. The other party were informed that it is now Hayward Bakers intention to issue full court proceedings on behalf of Miss H. This will of course incur further costs and should the other party now admit liability for the accident this would minimise the additional legal costs which will potentially be incurred in relation to issuing court proceedings.
Hayward Baker informed Miss H that they would now await to hear from the other party with confirmation of whether they are going to admit liability for the accident. As Miss H was injured when a member of their staff let off a smoke bomb in close proximity to her they feel confident of proving a breach of duty/negligence on their part in relation to the accident.
Miss H’s solicitor wrote to her and said they were arranging to send papers to the Court to ‘issue’ her claim. This action must be taken before the third anniversary of the accident which is approaching in May. This will protect her ability to pursue the claim for a further 4 months from the date of ‘issue’ of the papers. During that time, if they are to pursue the claim through the courts, they will need to obtain a medical report setting out the extent of her injuries and that report must be served with the Court papers upon the defendant.
Miss H’s solicitors enclosed a medical records authority form which will enable them to apply for her full medical records from before and after the accident. Those records are necessary for a consultant to review before finalising his report on her injuries. She was asked please complete and then sign the authority form before sending it back to her solicitor as soon as possible?
In the meantime Hayward Baker sent the other party details of their medical expert nominations and stated that should they not object in 14 days they will go ahead and choose one of these experts to examine Miss H.
Once Miss H’s medical records were received her solicitor arranged for a medical appointment with an Orthopaedic Consultant. Miss H was asked when attending the appointment that the expert will be asking her questions on the following: –
- Details of all injuries suffered and their immediate affects upon every aspect of her life;
- What treatment she has been given in relation to each injury and what treatment she is presently undergoing and have been advised that she might need in the future;
- Details of any continuing disability and the affect that this has upon her home life, employment, hobbies or pastimes etc that she enjoyed prior to the accident.
She was told that she may find it helpful to prepare a handwritten note commenting on each of these questions to pass to the expert at the examination. This will ensure that all matters that she is likely to want to be dealt with are covered in the report.
Miss H duly attended the examination and the report finally arrived on her solicitors desk. The report confirmed that Miss H did suffer a burn to the chest but has now healed and left a faint mark. Miss H was asked to send a photograph of the scar to her solicitor if it showed up in a picture as this will help accurately value her claim. The consultant also confirmed in his report that she suffered a pain in her neck, which is ongoing but with physiotherapy should resolve in 6-8 months. Her solicitor also enclosed a schedule of Miss H’s out of pocket expenses and asked that she add her travel expenses to and from the physiotherapy that is being arranged by her GP.
Miss H was asked if she was unsure that she will recover within 6-8 months after treatment, then her solicitor will need to wait for her to have the treatment and for the 6-8 months to pass before they place a final valuation on her claim. It may be necessary to obtain an updated medical report before finalising the claim if she is concerned that she may not recover as anticipated . Miss H was told to bear in mind that settlement will be full and final; once settled the claim cannot be re-opened. The defendant is of course still denying liability and it appears likely that the claim will need to be dealt with through the Courts. The consultant also mentioned fear of fire and fireworks since the incident and he recommended that she sees a psychologist.
With regard to valuation her solicitor at Hayward Baker stated that compensation is assessed under two main heads:-
- Pain, Suffering and Loss of Amenity (General Damages)
The court will award compensation to reflect pain, suffering and loss of amenity resulting from the injuries. The award of compensation under this main head is sometimes termed ‘general damages’.
The assessment of compensation by the court will be made, to a large extent, on the medical evidence. That assessment will be based on this individual case, as each claim is unique. Nevertheless, some guidance on the appropriate level of compensation can be obtained from previous cases and that enables an estimate to be made of the likely award if the matter had to be decided by the court.
Miss H’s solciitor pointed out that valuing a claim is not an exact science. It is not possible to predict what Miss H might be awarded by a particular Judge on a particular day. However, it is possible to make a reasonable assessment of the likely value of her claim.
Having reviewed the medical report, researched previous case law and also looked at the Judicial Studies Board Guidelines which are the official guidelines the courts use to value claims for injury, her solicitor considers the court would be likely to award damages for pain, suffering and loss of amenity in the region of £4500 to £6500, assuming that she will make a full recovery within the next 6-8 months. This does of course assume that the claim is successful and there is still a risk that it will not be.
- Expenses and Financial Loss (Special Damages)
The court will also assess compensation for quantifiable expenses and losses resulting from the injuries. The award will reflect sums which are reasonably claimed and can be shown to have been caused by the injuries. The compensation awarded under this head is sometimes termed ‘special damages’.
As mentioned above Miss H was sent the schedule setting out her losses that her solicitor had details of to date. If there are any additional expenses that she would like included she was asked to supply her solicitor with full details with receipts and supporting vouchers wherever possible. As with the medical report, once she has approved this schedule, there will be no further opportunity to either add to it or amend it.
The schedule of the financial losses totals the sum of £440 plus the cost of the paint-ball day itself if she wishes to claim for it. Again if they went before the judge her solicitor believes that they would recover in the region of £300 to £400 against this schedule.
As time was pressing Hayward Baker Solicitors were busy preparing papers for court. One document in particular was being drafted and this was the ‘Particulars of Claim’ which is the document signed by Miss H setting out the full details of the case, the particulars of negligence, particulars of the injury and particulars of special damages ( out of pocket expenses). An assessment as to what the damages are worth ws also included.
This was sent to Miss H explaining that this is the document setting out how your accident happened and why she are blaming the paint-ball company. She was asked to check this very carefully as it forms the basis of her claim at Court and it is vital that it is accurate. It may not be possible to amend the document once it has been sent to the Defendant.
If anything needs to be altered in any way she was asked to let her solicitor know. If however it accurately explains the circumstances of the accident and if she does not wish to add any other information, she was asked to sign where indicated and return the whole document to Hayward Baker. She was informed that she will be signing a statement of truth and signing without an honest belief in the document’s truth could be seen as contempt of Court.
Miss H had now approved the medical report, special damages schedule, particulars of claim and copies of these documents were served upon the paint-balling company asking that they pass the enclosed documents to their insurers along with the court documents Notice of Funding and response Pack.
Witness evidence was gathered by Hayward Baker solicitors and 6 signed witness statements were signed and sent back to them. The court procedure was ongoing and still no word for the paint-balling company regarding their insurers. However as time went on and the court process was looming nearer the paint-balling company had now stated they wanted and extension of 28 days for their insurers to investigate the matter. Shortly after the insurers were replaced by solicitors that had been instructed to take over the matter in defending the paint-balling company.
Miss H had now been to see a Psychologist about her phobia of flames and fireworks and the expert expected the symptoms to resolve within 6 months. Miss H was happy with the prognosis and returned the signed approval form to her solicitor. Miss H informed her solicitor that as yet no physiotherapy had been arranged via her GP so this was arranged for her by her solicitor with a medical agency as soon as possible as Miss H had to be seen to be mitigating her losses.
Further paperwork was filed with the court and so were witness statements from the other party.
Other documents were now being filed with the court by the other party that had not been previously disclosed so Hayward Baker sent an application to the court that they be barred from relying upon any witness statements and any documents not previously disclosed. The same day the other parties solicitors admitted liability for the accident in full.
With Miss H’s authority Hayward Baker Solicitors now made an offer to the other parties solicitors for £9,000.00. This offer is intended to have the consequences of Part 36 of the Civil Procedure Rules. Therefore if the offer was not accepted within 21 days of service of this notice the Defendant (paint-balling Company) would be liable for the Claimant’s (Miss H) costs in accordance with part 36.
As liability was now admitted the witnesses were all informed that they are no longer required to give evidence.
The other parties solicitor now made a counter offer of £7,500.00 which was close to Miss H’s solicitors initial valuation and so was accepted by her on the understanding that this is in full and final settlement of her claim and there would be no going back for more compensation at a later date.
Once Miss H’s signed consent had been received by her solicitor the other parties solicitors were notified that she would accept their offer and attached a consent order for them to sign which Hayward Baker would lodge with the court and request that the hearing is vacated.
the hearing was vacated and Miss H was sent her compensation cheque.