To Mr. Hunter
Thankyou for your letter regarding your recent accident.
Firstly, I will begin by giving you your options in regard as to whether your accident would constitute a criminal or civil action and giving you a brief description of both routes of law. Secondly, I will explain the duty of care and where it lies. For example, Tort law with a brief explanation. Thirdly, I will explain which area of law your case comes under, which courts would be used and what if any compensations you could be entitled to. Furthermore, I will inform you of what other options are available to you, such as alternative dispute resolution. Moreover, I will inform you of any further information that will be required from you. For example, medical reports should you decide to pursue this matter. Lastly, I will provide you with some contacts that should be able to assist you further.
Firstly, it will be necessary to determine whether your case will fall under criminal or civil law. Criminal law deals with behaviours that are harmful to others such as breaking of government rules. Slapper & Kelly (2015). If your case was to be determined to be a criminal case more information would be needed. For example, were the police involved and if so why had the other party consumed alcohol if so then a crime number should also have been issued and will be required and proof of liability. Furthermore, if it was to be a criminal case your case would be classed as a summary offence. These are less serious cases, for instance, motoring offences and minor assaults, where trial by jury is not required and take place in magistrate’s court. Courts and tribunal judiciary (2018).
Whereas, civil law is only concerned with private issues between members of the community. For example, property such as your car. Based on the information you have provided I would be inclined to follow a civil claim. Slapper & Kelly (2015).
Under civil law, the neighbor principle is an extension of tort law and is designed to determine when a duty of care is owed. For instance, a person must take judicious care to evade acts or omissions which you can rationally foresee could harm or injury to others. For example, In Donoghue v Stevenson (1932), a friend of the plaintiff obtained a bottle of ginger beer in a colored bottle. The plaintiff poured some of the ginger beer into a glass and drank it. She then poured the rest into the glass and saw what she claimed to be the remains of a decayed snail fall from the bottom of the bottle. She claimed to have been ill as a result. She prosecuted the manufacturer of the ginger beer in negligence as she had no contract with either the retailer or the manufacturer. The House of Lords established that a manufacturer of products owed a duty to take reasonable care to the consumer of the product. Lord Atkin stated his neighbour principle as a means to determine where a duty of care is owed. CILEx Law School Ltd (2016).
Secondly, Tort law a tort is merely a civil wrong. In civil law, torts are grounds for lawsuits to compensate a grieving party for any damages or injuries suffered. Slapper & Kelly (2015). Tort law has three types of liability which are intentional tort. For instance, fraud, to intentionally con someone out of money, strict liability. For example, the consequence of harm experienced because of the actions of another with no fault by the defendant and negligent tort, such as causing harm due to a negligent act, such as causing a car accident because red light was run.
Negligent tort is the area I would advise your case would come under because from the information you have supplied it would indicate the other driver was at fault due to the fact you mention your car was stationary and the driver of the van crashed into you. This is of course based on the proviso that the information you have provided is correct and other factors such as weather conditions were good. For example, clear and dry as opposed to wet or icy. Under negligent tort, the driver was not paying due care and attention whilst driving. For example, the highway code as stated in the road traffic act 1991 rule 144 states you must not drive without due care and attention or drive without reasonable consideration for other road users. www.gov.uk (2016).
Thirdly, you mentioned you sustained various injuries during the accident to your back and neck which I assume means you would like to pursue a claim for damages. Tort Law generally will permit a claim for compensation which is usually monetary compensation and could include loss of earnings due to the injury though the amount does vary due to differences in the traffic accident and injuries received. https://tort.laws.com/compensation (2018).
For example, a comparative case Gwilliam v Kally 2016 C.L.Y. 1630; Mr. Gwilliams was injured when his car, which was stationary at a set of traffic lights, was hit to the rear by another vehicle. Mr. Gwilliam was jolted backwards and forwards by the impact. He left the vehicle unaided. He experienced shock for four days and pain to his neck and lower back which was severe at onset and moderate by the time he was medically examined five months after the accident. On that examination, his movement was ninety to ninety nine percent normal and appeared to cause pain and muscle spasms in the neck and lower back. Mr. Gwilliams sleeping, and personal care, social life and walking were primarily severely restricted, and were moderately restricted by the time the medical examination had taken place, it was recommended that he have eight sessions of physiotherapy. The diagnosis was that his neck and lower back injuries would resolve within twelve months of the accident. He later received general damages of £3,600 and payment for physiotherapy of £415 in total the damages awarded were £4,025. Westlaw (2018).
The reason I have mentioned this case is because there are several similarities. For example, Mr. Gwilliams car was stationary as was yours and another driver drove into the back of him similarly to your accident. Furthermore, he also received injuries of a similar nature, such as the neck and back which are common in rear end bumps. However, though you have not stated how much pain you are suffering because you did seek medical attention I assume you would like to follow a personal injury claim though medical evidence would be required from your doctor stating these injuries are a direct result from the car accident. https://tort.laws.com/compensation (2018).
Furthermore, as I mentioned earlier County court would normally deal with your case as they have authority in most tort cases. The County Courts do not have a Jury, the decision and outcome are exclusively down to the judge and after hearing the claim and supporting evidence he or she will then decide if and what damages the claimant is owed. The process of going through courts may prove a more expensive route. For example, lawyer or solicitor fees which usually is the responsibility of the unsuccessful party that will be liable to pay these fees. However, it is down to the judge’s discretion to award any compensation. Courts and tribunals judiciary (2018).
The Judge is the person in charge of the court room unlike magistrates or crown courts where the jury delivers the verdict in criminal cases and the judge is merely an overseer of the proceedings and delivers the sentence. This is to ensure the case proceeds as quickly and professionally as possible including encouraging both parties to co-operate with each during case, helping both parties to settle the case including encouraging both parties to use an alternative dispute resolution procedure if appropriate. Courts and tribunals judiciary (2018).
Moreover, there are four types of alternative dispute resolution. These are conciliation where a third party would help solve the issue though this is not legally binding so the agreement could be broken at any time and so I would not recommend this solution for you Mr. Hunter. Mediation, where both parties agree to discuss the issue much like conciliation with no legal bindings and no real solution. Negotiation in which both parties could negotiate terms to reach an agreement on what they both would like to happen outcome wise however this would not be suitable in this case as you are the only party seeking compensation and again not legally binding. However, the fourth option arbitration is a possibility in your case Mr. Hunter, because arbitration is much like a small trial as the third party must be an expert in your specific case. For example, a lawyer or solicitor that specialises in personal injury claims or road traffic claims. Arbitration is the only type of alternative dispute resolution that is legally binding and can legally award compensation and damages. Arbitration Act (1996). Slapper & Kelly (2015). Also, arbitration is far more informal, low cost or free to use. The proceedings in comparison to going to court is usually a far quicker process but can be restrictive when it comes to appeals. Citizens advice (2018).
There are various professionals that could further help with your claim such as a solicitor that could further advise you should you choose to go down this root, many specialise in specific areas such as personal injury. I could recommend first four lawyers to you they do specialise in road traffic accidents and work on a no win no fee basis alleviating any risk of costs to you if you do not win your case. This is their website address www.first4lawyers.com/Car Accident/Solicitors?. The solicitors I have recommended also offer a web chat service or call back service so you can discuss your case before you make any decisions. Solicitors are duty bound to give you the best information to their knowledge, and include all facts that are relevant to you and protect your interests at all time. Solicitors regulation authority (2017).
Lastly, if you do decide to continue you will need to supply medical evidence to your solicitors. For example, proof of the doctor’s letters and any referrals, including proof for any loss of work/income. Proof of any further losses you have incurred as a direct result of the incident such as car hire, you would need to retain a copy of the agreement and costs in order to claim compensation.
In conclusion, if you read through the information I have supplied, for example the difference between criminal and civil law and the reasons why I think your case will fall under tort law. For example, the road traffic act 1991 rule 144 stating you must not drive without due care and attention or drive without reasonable consideration for other road users. www.gov.uk (2016). I hope this gives you a better understanding on tort law. Furthermore, I hope the comparison example case Gwilliam v Kally 2016 C.L.Y. 1630; helped to give you a clearer picture of where you may stand if you were to decide to take your case further. Westlaw (2018). Please remember to consider that you do have other options. For example, alternative dispute resolution, such as arbitration. Citizens advice (2018).