The assessment is a 30 minute negotiation. The Module Leader has allocated
yourself the role of claimant. The opposing side will also be a student
who will play defendant as allocated by the Module Leader.
Kumar v Foster
This
scenario concerns a claim for compensation being pursued by the
claimant, Anil Kumar, for personal injuries and other losses he had
sustained in a road traffic accident on 7 March 2018.
Information for Anil Kumar (The claimant)
In
this negotiation you act as the legal representative for Anil Kumar,
aged 20 years old (his date of birth is 14 February 2001). Anil is from
Handsworth.
The circumstances of the accident were that on the night
of 7 March 2018, Anil was on his moped near his home at about 11.20
pm. He had been out on his moped and he was stationary in the centre of
the road about to turn right into the driveway of his home. While he was
in that position he was run into from behind by a Range Rover, which
was being driven by Callum Foster, who had just overtaken another motor
car. As a result of the collision, Anil was thrown off his moped and
landed heavily on the road. The helmet he was wearing prior to the
collision came off Anil’s head, crashed through the windscreen of the
Range Rover and landed on the lap of a passenger who was travelling with
Callum.
Callum had been drinking prior to the accident and
admitted this to the police, who attended the scene of the accident,
immediately following the accident. Callum was breathalysed by the
police and his breath-test reading, recorded at midnight, showed him as
being significantly over the limit. Callum was charged and prosecuted
for drink driving to which he pleaded guilty.
At the time of the
accident Anil was 17 years old. He was a student at Handsworth Grammar
School and was highly talented and gifted in his academic abilities and
sports, particularly football. Anil’s school report and academic test
scores indicate that he was in line to follow an academic route but
based on his sporting ability there was also a high chance of him
progressing to a professional career in football. Nine months before
his 17th birthday Anil was recruited by Birmingham Football Club to join
their Academy for young and talented players. Anil played in many
competitive matches whilst at the Academy. He also appeared 5 times in
the reserve team matches and made the bench for the first team on three
occasions, with one substituted appearance for the first team. It was
anticipated by his coach that he would be selected to play
professionally for the club and ultimately for England under 21’s. His
coach often commented that he, along with four other Birmingham Academy
players were “the future” of Birmingham Football Club. Anil had told his
school teachers that he aspired to be a professional footballer and as a
fall back a Chartered Accountant. Anil’s teachers were of the opinion
that he would attend Oxford University for his higher education, as he
was strong academically having achieved 10 A* GCSEs and was predicted to
achieve 4 A*s for his A-levels. Anil’s IQ was 120.
Anil
sustained head injuries, brain damage and back injuries and as a direct
result of the accident, he is a completely changed person. Anil’s memory
is impaired and IQ lowered by 60 points. He has some loss of taste,
slurring of speech and his limb co-ordination is reduced. He has also
sustained double vision. His spinal column is weakened and he sustained
fractures to the last two lower vertebrae of his spine, as a result of
which he has constant back pain and cannot lift heavy weights, walk for
long or sit for long. Anil’s life has completely changed as a direct
result of the accident. He needs daily, 24 hour, care for the rest of
his life.
Following the accident, Anil was an in-patient at
the Birmingham City Hospital for six months. He was unconscious for
most of that duration but eventually came round. He experienced
retrograde amnesia and now has a 5% risk of post-traumatic epilepsy.
Anil’s family has noticed a change in his personality in that he suffers
from severe mood swings. After a period of recovery following regaining
consciousness Anil, although mobile (albeit restricted), requires
constant care. He has no future career or job prospects because of the
brain damage he sustained as a result of the accident.
Quraishi
& Cham (QC) Insurance Company Ltd has been in correspondence with
Anil’s solicitor and liability has been largely admitted on behalf of
Callum Foster. There is an issue of contributory negligence being
alleged against Anil. Callum’s insurer contends that Anil’s injuries
were made worse because the helmet he was wearing was not fastened and
thus when he was hit by Callum’s Range Rover and thrown off his moped,
Anil’s helmet flew off his head which resulted in greater head injuries
and brain damage when he hit the ground. Anil’s instructions are that
to the best of his recollection he was wearing his helmet which was
fastened at the time of the accident. However, following the accident
Anil’s memory has not been good and he has vague recollections of the
accident. The evidence is not clear as to whether Anil’s helmet flew
off his head as a result of not being fastened or because of the impact
of Anil’s fall onto the bonnet of Callum’s motorcar, when the helmet’s
fastening could have broken off, prior to him falling onto the ground
and hitting his head on the ground. QC Insurance has proposed that
Anil’s damages claim be reduced by 35% due to his contributory
negligence. Counsel’s advice was taken on this matter and counsel’s
opinion is that it is highly unlikely that the defendant would succeed
on a claim of 35% for contributory negligence as liability for the
accident rests firmly with the defendant who has been convicted for
drink driving. There is a Court of Appeal’s decision, Capps v Miller
(1989) 1 WLR 839 (a case with similar facts to Anil’s case), whereby the
court allowed 10% for contributory negligence.
Directly as a
consequence of the accident, Anil is faced with permanent physical
disability for the rest of his life. He has been left with an
impairment of intellect, affecting memory and intelligence, and his IQ
has declined by around 60 points. He has language difficulties
particularly naming and word finding and with executive functioning,
such as abstract thinking. His concentration has been impaired and he
tires easily. Cutaneous sensation has been reduced on the left side of
his face and tongue and there is some reduction of taste as a result,
although he can still taste his food and his sense of smell is
unaffected. Limb co-ordination is reduced. The medical reports from the
orthopaedic consultant and neurologist are that in the long term Anil
will have further degeneration of his spine and will become even less
mobile. He will never be able to work because of his brain damage and
he will require 24 hours care. He will need to live in a bungalow which
will need to be adapted to accommodate his various disabilities and
limited mobility. His bungalow will also need to have two additional
bedrooms to accommodate two carers who he will need to care for him and
to help him with domestic cleaning and shopping.
Anil’s
personality has also been profoundly affected. He is aware of his
intellectual difficulties to some extent, he is impulsive and his social
skills have been impaired, he has difficulty in foreseeing the
consequences of his actions, his speech is slurred and his writing slow.
Although he has some form of social life, it is susceptible to bad
influences. His prospects for marriage have been reduced significantly.
He will find it difficult to establish close relationships,
particularly with the opposite sex. Although he will be able to father
children, he would not be able to fulfil his responsibilities as a
husband and father. He will remain mentally slow with impaired memory
and will have problems handling complex situations. He will be easily
distracted and have difficulties learning and retaining new skills or
information. This will limit his future activities and interests. Anil
will require long-term support and rehabilitation in a structured
setting.
But for the accident, Anil had a bright academic career
as an accountant or a professional future as a footballer. An expert
employment consultant’s report, which was commissioned by Anil’s
solicitor, indicated that his earning capacity as a professional
footballer would have been in the millions. Even if he followed a
career as an accountant, he would have earned on average £100,000 per
year at the peak of his professional career.
Anil’s solicitor
has obtained a barrister’s opinion about the likely sum of compensation
he should be seeking from the defendant. The barrister advised that for
Anil’s various injuries (both physical and psychological), the range of
compensation, if the case went to trial and Anil was granted full
compensation, would be as follows: -
• for pain and suffering
(including for both head and spinal injuries) and loss of amenities
(including quality of life) between £160 000 to
£200 000;
• for cost of care (including future cost of care) between £170 000 to £190 000;
•
£400,000 for cost of a new house with aids and adaptations to support
the claimant with his disabilities. The house also needs to contain
four bedrooms and two bathrooms in order to accommodate Anil and two
carers; and
• future loss of earnings the range is between £5.5
million to £7.0 million (as a professional footballer) or £1.75 million
to £2.25 million (as a professional accountant).
Of course,
there is always the possibility that Anil might be awarded substantially
less compensation, particularly if the defendant’s insurer is
successful with the argument of contributory negligence.
Anil’s
family has told his solicitor that he would not be able to cope with
any long term legal action because of his psychological injuries and
wants to avoid a trial, if at all possible. Therefore legal action
should be absolutely a last resort, and should only be followed if a
reasonable agreement cannot be reached.
You have been asked to
negotiate on Anil’s behalf and it is up to you to get the best deal
possible for him. Anil has already spent approximately £100,000 thus
far on legal fees and other related expenses covering medical reports
and other experts’ reports fees. You are also required to negotiate
recovery of legal costs as well as compensation.
With your team
member, negotiate on behalf of Anil in relation to this claim. Decide
between yourselves which point(s) each of you will address during the
negotiation. At the introduction stage, state which point each of you
will be addressing.
The parties to the negotiation are:
1.
Claims Officers for Quraishi & Cham (QC) Insurance Co Ltd, an
insurance company and the insurer for Callum Foster (defendant).
2. The legal representatives for Anil Kumar (claimant).
You can strategise the negotiation as you like and you will be marked on criteria set out in the marking guide below:
Preliminary matters:
? Introductions
? Establishing the framework for negotiation
Fact finding:
? Asked appropriate and relevant questions to elicit further information
? Give reasons for particular point of view when appropriate
Conduct during the negotiation:
? Avoided deadlock
? Keep the negotiation moving
? Ask appropriate and relevant questions and offer solutions
? Highlight concessions
? Good communication skills and use of language
? Good listening skills, both active and passive
? Conducted themselves professionally throughout
? Conducted themselves courteously
Reaching an agreement in accordance with the client’s instructions and within authority, if possible
Summing up the terms of the agreement, if any, reached
Closing the negotiation
Analysis of the scenario:
? Showed an awareness of what the claim concerns
? Showed awareness of what the client wants
? Showed awareness of the client’s interests
? Negotiated within the client’s limitations and instructions or authority
? Showed an understanding and addressed effectively the issues that are important to the other party
?
Showed an understanding and awareness of the strengths and weaknesses
of the client’s matter and had a plan to deal with them in the
negotiation
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