Legal Research and Opinion Writing

Thakur v Mitchell (Part 2)

Sample answer: Opinion on quantum

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SAMPLE ANSWER

IN THE COUNTY COURT AT CENTRAL LONDON Claim No 0YJ3649

BETWEEN:

MR SAHIL THAKUR
Claimant
and

MRS FELICITY MITCHELL

Defendant

OPINION ON QUANTUM

1. I am asked to advise the claimant, Mr Sahil Thakur, who was seriously injured in a
road traffic accident on 28 August 2020. At this stage I am asked only to advise on
the likely value of the award for general damages for pain, suffering and loss of amenity
and any relevant evidential and procedural matters. In so doing I take into account the
best- and worst-case scenarios for Mr Thakur’s claim in order to come to a realistic
valuation.

Summary of facts

2. The facts of the accident are those recited in my opinion on liability and I will not
reiterate them here. In consequence of the collision, Mr Thakur suffered a
comminuted fracture to his right femur, and various lacerations and bruises.

Summary of advice

3. On the evidence presently before me, it is my opinion that on Mr Thakur’s best case,
on a full liability basis, the award for general damages for pain suffering and loss of
amenity is likely to be in the region of £18,500. However, as previously advised in my
opinion on liability, I am of the view that Mr Thakur is likely to be subject to a finding of
contributory negligence of between 25 per cent and 50 per cent, so any award of
damages will be reduced accordingly.

General damages for pain, suffering and loss of amenity

4. This advice on quantum for general damages for pain suffering and loss of amenity
(‘PSLA’) is based on Mr Thakur’s injuries and condition and prognosis as set out in the
medical report of Mr Michael Foley, Consultant Orthopaedic Surgeon, dated 1
November 2022.

Fracture of right femur

5. Mr Thakur suffered a comminuted (that is, broken, splintered or crushed) fracture of
his right femur which was treated by way of fixation under general anaesthetic. A metal
plate and seven screws were fixed in place, and a rigid plaster cast applied. Post-

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 operative recovery is said to have been normal. He was discharged from hospital after
two weeks and remained non weight bearing for a further five weeks, after which the
cast was removed and replaced and he was able to mobilise with crutches. After a
further eight weeks, the rigid cast was removed and replaced with a cast brace and
pelvic support. Approximately two months later the cast brace was removed, and two
weeks after that he was permitted to be fully weight bearing. Mr Foley states that Mr
Thakur attended seven physiotherapy sessions after removal of the cast brace,
although does not comment on whether Mr Thakur received physiotherapy before this
time. Mr Thakur should be asked to confirm the position.

6. Mr Foley states that Mr Thakur made a sufficient recovery to return to work on desk
duties from mid-June 2021, and a full recovery by the end of March 2022, although the
plate and screws remain in place. Mr Thakur has been left with a 20 cm scar on the
outer side of the right thigh. Mr Thakur complains of a clicking sensation in his knee,
but I note that Mr Foley considers this to be attributable to a laxity of the ligaments, but
that it is not a functional impairment. It is unclear whether Mr Thakur has an increased
risk of arthritis in the leg resulting from the fracture, and Mr Foley should be asked to
comment. For the purposes of this advice I shall assume that there is no increased risk
of arthritis in the leg because of the fracture.

7. The appropriate bracket in the Judicial College Guidelines (16th edition) in my opinion,
is Chapter 7 Orthopaedic Injuries (J) LEG INJURIES (c) Less serious Leg Injuries, sub-
category (i). This is for leg fractures from which an incomplete recovery is made. This
covers fracture injuries where there has been a reasonable recovery, but the injured
person has been left with a metal implant and/or other long-term problems. Mr Thakur's
substantial recovery means he does not come within the next most serious category,
which is for complicated fractures etc., typically with imperfect union or other long-term
disabilities. His comminuted fracture, combined with the continuing presence of
metalwork in his leg, means he does not come within the next lower category, which
is for simple femur fractures. Category J(c)(i) injuries have a guideline bracket of
£17,960 to £27,760.

8. There are several cases from which a court is likely to derive assistance in assessing
the sum to be awarded to Mr Thakur for his injury. However, some of the authorities
are relatively old (fractured femurs being so commonplace that they are seldom
reported), and therefore should be treated with caution once the award has been
updated for inflation. The older the case, the more unreliable the updated figure
becomes.

9. It is of course necessary to uplift any award made before 1 April 2013 by 10 per cent
in accordance with Simmons v Castle [2012] EWCA Civ 1288, reflecting the policy to
adjust awards in accordance with the Jackson Reforms and the commencement of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012.

10. In the case of John Wray v (1) Bartlett (2) Motor Insurers Bureau [2002] Lawtel
AM0200422, the claimant was male and aged 26 when injured, and 31 at trial. He was
a joiner. After a head-on collision he remained unconscious for two weeks. Among
other injuries he suffered a comminuted fracture of his right femur, which was pinned.
The metal work remained in place at the date of the hearing. He was left with a
permanent limp due to a 1.5 cm shortening of his leg. Mr Wray was discharged from
hospital after just over four weeks, and was mobilised on two crutches for four months
and one crutch for a further two months. He returned to work after six months, but due
to the permanent disability caused by the shortening of his leg, he was no longer able
to work alone. The limitations on his working capacity were permanent, and he was
unable to resume any of his numerous previous sporting activities, including swimming,

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 rugby and cricket. His total award for PSLA was £27,000, of which £20,000 related to
his leg injury. Updating for inflation to November 2022 and adding a 10% uplift for
Simmons v Castle, the award would today be worth £45,218.

11. A court is likely to take the view that Mr Wray’s case is much more serious than Mr
Thakur’s. Despite the shorter timeframe in which Mr Wray was able to return to work,
he was left with a permanent disability which seriously affected his ability to perform
his job; rendered him completely unable to enjoy his previous hobbies; and left Mr
Wray concerned that he would be unable to play with his young son. Mr Thakur, on
the other hand, has been left with no permanent disability, and has, I am instructed,
been able to resume all his pre-accident sporting activities without any loss of ability.
There is also no doubt that in the Wray case a significant factor was the impact of his
injury on Mr Wray’s ability to work and to find work in the future. There is no suggestion
that Mr Thakur will suffer any such impediment.

12. In the case of Chillcott v WM Armstrong (Longtown) Ltd [2007] Lawtel AM0504458,
the claimant (male aged 19 at injury and 23 at trial) suffered multiple injuries in a road
traffic accident. Of relevance to Mr Thakur’s case, the claimant in Chillcott sustained
what was described as a ‘very comminuted’ fracture to his right femur. It was treated
by insertion of an intramedullary nail. The claimant spent five months on crutches, and
he was left with a permanent shortening of his right leg by approximately 1.5 cm,
causing him to limp slightly and necessitating a shoe-raise. There was minimal risk
(less than 10 per cent) that the claimant would suffer further degenerative change due
to the femoral injury, but further surgery would be required to remove the metalwork in
his leg, which would require a recovery period of at least a further one to two months.
The claimant in Chillcott also sustained scars to both of his legs, one of which was a
surgical scar measuring 13 cm. The court awarded £11,000 for the fractured femur,
and £3,000 for the cuts and scars to the claimant’s legs. Updating for inflation to
November 2022 and adding a 10% uplift for Simmons v Castle, the award would
today be worth £20,983.

13. It is likely that a court would consider Mr Thakur’s case to be marginally less serious
than that of Mr Chillcott. While Mr Chillcott’s substantial recovery from his leg injury
was marginally shorter than that of Mr Thakur, significantly, Mr Chillcott suffered from
a permanent disability resulting from the accident – a 1.5 cm shortening of his leg. His
scarring was also much more extensive (he was awarded an additional £3,000 in 2007
money for two significant scars to his leg), and unlike Mr Thakur, Mr Chillcott would
require further surgery in the future.

14. In the case of Patterson v Bassett [2000] AM 0502679, the claimant (male aged 26 at
injury, 30 at date of trial) sustained a laceration to the right side of the forehead and a
broken right thigh bone. He was in hospital for 11 days during which time the fracture
was fixed with an interlocking nail. By 12 weeks post-accident, he no longer required
walking aids. At eight months post-accident, the claimant had pain and discomfort at
the site of the metal nail and had developed muscle wasting in his thigh. He
subsequently underwent surgery and all metal work was removed. X-rays showed the
fracture to be well healed with no evidence of osteoarthritic changes. At trial, the
claimant complained of minor discomfort and stiffness of the right hip after prolonged
driving. He had been able to return to playing squash. The court assessed the award
for pain suffering and loss of amenity in respect of the leg injury to be £8,000.
Updating for inflation to November 2022 and adding a 10% uplift for Simmons v Castle,
the award would today be worth £18,320.

15. In my opinion, a court is likely to conclude that Patterson is marginally less serious
than Mr Thakur’s case. Mr Thakur and Mr Patterson are similar in age, each had to

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 have metalwork inserted into his leg, and each had no lasting residual symptoms from
his injury. However, it took Mr Thakur a considerably longer period to recover
sufficiently from his injuries to be able to walk unaided, and the metalwork in his leg is
to remain permanently in place.

16. In my opinion, Mr Thakur's injury is slightly less serious than Chillcott, which today
has a value of £20,983. Mr Thakur's injury is slightly more serious than Patterson,
which today has a value of £18,320. On that basis, I would advise that Mr Thakur
should receive an award in the region of £18,000 for the comminuted fracture to his
right femur.

Abrasions
17. It is also clear that Mr Thakur suffered from some scratches and bruises to his face,
neck and right hand as a consequence of the impact. It is likely to be an uphill battle to
persuade the court to make a separate award in respect of these injuries, as it may
consider that they are not substantial enough to justify such an award. If Mr Thakur
can persuade the court to make a separate award for the additional scratches and
bruises, it is likely to award a nominal sum to cover these, of no more than £500.

Conclusion on likely award for pain suffering and loss of amenity

18. Mr Thakur’s injuries indicate that an award at or near the bottom of the range for JCG
Category L(c)(i) injuries is likely. This is confirmed by the figures from the comparator
cases mentioned above. Therefore, on a full liability basis, it is my opinion that the likely
overall award for PSLA will be in the region of £18,500. Therefore I conclude that Mr
Thakur’s injuries indicate that an award at or near the bottom of the range for JCG
Category J(c)(i) injuries is likely. This, of course, assumes full liability. The total award
will be subject to any reduction for contributory negligence, which my instructing
solicitor will recall could be as high as 50 per cent.

Further evidence and next steps

19. I note that my instructing solicitor has provided a provisional schedule of past loss and
expense with my instructions. No doubt my instructing solicitor will provide a full
schedule with the particulars of claim. I advise that Mr Thakur be asked to provide
receipts for all stated losses so far as it is possible to do so, and to provide the following
further information:

a) confirmation of where in the car his satnav, iPhone and iPad were located, and
whether they were damaged beyond repair (paragraph 19 of his draft witness
statement)
b) confirmation from his employers of his annual salary and of what sums were paid
to him for what periods during his absence from work while recovering from his
injuries
c) information regarding whether he paid for his airfares to, and hotel in, Milan in
advance, and if so whether he has been able to recoup those sums
d) information regarding whether he has made any claim for state employment and
support allowance after his entitlement to statutory sick pay terminated
e) confirmation of whether he attended any physiotherapy sessions prior to the cast
brace being removed, and if so the associated cost.

20. It would be useful for my instructing solicitors to confirm whether the used value of the
car was agreed by Mr Thakur’s and Mrs Mitchell’s respective insurers.

21. Witness statements should be obtained from Mr Thakur’s carers while he recovered
from his injuries setting out the nature and extent of the care provided.

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22. Could my instructing solicitor also seek confirmation from Mr Foley whether Mr Thakur
has an increased risk of arthritis in his leg resulting from the fracture? It will also be
necessary to obtain an estimate from Mr Foley for the cost of dealing with any further
queries, with a view to ensuring any such costs are included in the costs budget (which
has, I presume, not yet been filed).

23. I reiterate my advice regarding ADR. It is of course difficult, in a case in which the
outcome depends on the version of the facts accepted by the court, to anticipate how
ADR would assist. Nevertheless, the court expects the parties to consider attempting
to settle, and failure to consider or engage in appropriate alternatives to trial could
result in costs sanctions. It appears to me that both the liability and quantum aspects
of the present claim might be susceptible to mediation. In any event, the quantum
element is well-suited to negotiation, and I advise approaching Mrs Mitchell with a
suitable proposal after the claim form has been served.

24. I trust this opinion assists Mr Thakur and my instructing solicitor. If any aspect of it
requires clarifying please do not hesitate to contact me through my clerk.

A BARRISTER
3 Paper Buildings
Temple
London

29 November 2022

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