By Alric Lindsay
According to an ex-tempore judgment delivered on December 11, 2024, and finalised and approved on January 15, 2025, the Honourable Justice Jalil Asif KC ordered that the insurers of Raymond Irvin Scott pay the full amount available under his vehicle insurance policy to Mila Lee Foster (suing by her daughter and next friend, Leanna Gabriella Dixon) in connection with a car accident the later Foster injured. Additionally, Justice Asif KC ordered that Scott’s insurers pay a contribution towards Foster’s legal costs and disbursements incurred in pursuing the claim and that Scott makes a personal contribution. The total compensation was undisclosed and redacted from the judgment.
Background
Based on the judgment, Foster was struck by a car driven by Scott on October 12, 2020, as she intended to cross a side road as a pedestrian. Foster was turning into the side road at the time.
Justice Asif KC explained further:
I am told that the accident occurred at relatively low speed, but it appears that the consequences for Mrs Foster were very severe in the sense that she suffered a number of very serious physical injuries and, as a consequence of her physical injuries or associated with them, she has suffered very significant brain injuries which have had a life-changing effect upon her.
Reportedly, a monetary settlement was proposed and brought before Justice Asif KC to determine whether it was appropriate to approve it in Foster’s best interests.
After reviewing materials describing the nature of Foster’s injuries suffered in the accident, her post-accident treatment and recovery, her condition and prognosis, and her ongoing care needs and needs for aids and equipment to assist with her care going forward, Justice Asif KC said:
The materials before me indicate that on a full liability basis this would be a very high value claim, reaching several millions of dollars to cover Ms Foster’s pain and suffering and loss of amenity consequent on the accident; to cover her past and future care costs and aids and equipment, which are going to be very significant for the rest of her life; and also to compensate her for her loss of earnings as a result of not being able to work due to her injuries sustained in the accident.
Justice Asif KC added:
The issue which has driven the intended settlement in this case is that Mr Scott was insured on a road traffic policy of insurance with a limit on the insurers’ liability in relation to accidents of this kind of redacted, including legal costs.
On any view, even allowing for the issues on liability, the strong likelihood is that if liability were established and subject to any contributory negligence on Ms Foster’s part, the value of the claim would be many times more than the policy limit under the insurance policy.
Mr Scott has some limited personal assets of his own, and some of those assets have been realised in order to provide the plaintiff with some additional compensation over and above the policy limit.
Justice Asif KC concluded:
In light of that policy limit and in light of Mr Scott’s limited personal assets and means, it is a sensible decision, in my judgment, to resolve these proceedings on the basis that Mr Scott’s insurers pay the full policy amount available plus a contribution towards the Plaintiff’s legal costs and disbursements incurred in pursuing the claim, and that Mr Scott makes a personal contribution, which is not insignificant in light of his level of assets and earnings.
In my judgment, the proposed settlement is a reasonable one in all the circumstances, and I have no hesitation in endorsing the decision made by Ms Foster’s legal advisors to advise her to accept that settlement, and the decision by Ms Dixon on Ms Foster’s behalf as her next friend to accept that advice and to agree to complete the settlement on her mother’s behalf.
Like many of these cases, this case is tragic. The accident has had, as I said, life-changing impacts on Ms Foster. No sum of compensation can ever bring her back to that pre-accident condition, and the Court simply does not have that power. The most that an award for compensation can do is to try to make Ms Foster’s life going forwards a little bit more comfortable, and to provide for at least some of her care needs going forwards, and I am satisfied that the assessment that is proposed, and which I will approve, at least goes some small way towards providing that additional care in the future.
In addition, I approve the terms of the Contingency Fee Agreement between Ms Foster and her attorneys, which in my judgment strikes a reasonable balance between the risk incurred by the Plaintiff’s attorneys and the value of her claim; and I approve the legal fees sought by the Plaintiff’s attorneys in accordance with s.5 of the Private Funding of Legal Services Regulations.
The judgment also noted that Mr Nicholas Dixey of Nelsons, appearing on behalf of Mr Scott, expressed Mr Scott’s deep regret for the accident and the tragic consequences for Ms Foster and her immediate family.
