DF v (1) LEONARD WILLSHER (2) AMLIN UK LIMITED

Background

DF aged 58 at the time of the accident, was a self-employed delivery driver, working as a subcontractor. On 09/07/2013 he was making a delivery to a residential address. He had parked the lorry and left it to make the delivery when D1 entered the vehicle and proceeded to drive away in an effort to steal it. DF tried to prevent the theft by running back to the lorry and mounting it on the driver’s side, whereupon D1 pushed him away, causing DF to fall to the ground. D1 then proceeded to drive over DF causing him serious injury.

D1 was later apprehended by the police and on 30 January 2014 he was sentenced to a term of imprisonment of 3 years and 8 months for GBH, dangerous driving, aggravated vehicle taking and driving whilst disqualified.

Medical Evidence

The opinions of a Consultant Trauma and Orthopaedic Surgeon and Shoulder expert were sought on condition and prognosis. DF suffered the following injuries:

  • left scapula fracture with associated left axillary artery laceration with extensive blood loss. Treated non-operatively. DF underwent physiotherapy for his left shoulder and experienced on going weakness at the time of settlement.
  • multiple rib fractures with associated bilateral pneumothoraces. The expert confirmed the injury would resolve in 6-18 months.
  • left grade-III open tibial fracture. Treated initially with wound debridement, acute primary closure and application of an external fixator. Thereafter he underwent intramedullary tibial nailing. He made a good recovery but would continue to have anterior knee pain as a result of the tibial nailing.
  • pelvic ring injury. Treated with posterior sacroiliac screws and an anterior plate. Good recovery with no on going problems.
  • cervical spine injury at the level of C5/C6 treated in a collar for six weeks. DF made a near full recovery to his pre-injury state.
  • left peri-orbital injury. Treated non-operatively.
  • thumb laceration
  • abrasion of the right knee
  • pulmonary embolism 

Legal Proceedings

DF sought damages for personal injuries and losses suffered as a result of D1’s negligence.

A Letter of Claim was sent to D2, who were the insurers of DF’s lorry. This was on the basis that DF would obtain Judgment against D1 and under section 151 of the Road Traffic Act 1988 D2 would be obliged to satisfy that Judgment.

Legal Issues

There were a number of complex legal issues which arose in this claim.  These are summarised below:

  • whether the Claimant was entitled to recover because the vehicle was being used for a criminal purpose
  • insurance policy - excluded liability
  • whether the Claimant had invalidated his insurance by leaving his key in the vehicle whilst delivering his parcel
  • contributory negligence
  • whether any discount should be offered because the Claimant left his key in the ignition.
  • whether any discount should be offered because the Claimant jumped on the r the running board to try and prevent the theft of his vehicle. 

Settlement

The claim was settled on a global basis with no particular breakdown of heads of claim – the following is a suggested apportionment:

General damages: £70,000

Special damages: £180,000 (Past loss of earnings, past care, travel expenses, future loss of earnings, future care, future medical expenses)

D also agreed to pay C’s costs of the case.

 

Solicitors for the Claimant: Janice Gardner, Russell-Cooke

For the Second Defendant: Neil Stagg, Amlin UK Limited