Articles Post 2000
DISCOUNT RATE UP(-DATE)
Treasury Solicitor’s letter of 25.11.11 re discount rate
Detailed explanation of why the consultation process has taken so long
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COMMENT ON VARIOUS TOPICS for PERSONAL INJURY LAW JOURNAL
Discount rate – interim payments – life expectancy – the case of Whiten – CFAs
DISABLED ACCOMMODATION for LEGAL and MEDICAL
The accommodation issue as dealt with in Whiten v St George’s Healthcare NHS Trust
Mrs Justice Swift gave an excellent judgment about accommodation in this case
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ACCOMMODATING INTERIM PAYMENTS
Various recent cases dealing with interim payments for accommodation
Three cases in which, since Cobham Hire Services Ltd v Eeles was decided in 2009, claimants have failed to obtain interim payments from the court
Suggestions how to achieve a better result
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BRITISH ASSOCIATION OF BRAIN INJURY CASE MANAGERS MAGAZINEINDEPENDENT CASE MANAGERS
The development of brain injury case managers over the last 15 years
Good case managers can offer information and guidance to the claimant’s lawyers
It is vital that they remain independent
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PERSONAL INJURY LAW JOURNAL VARIOUS TOPIC
Experts – ADR – Part 36 offers – discount rate
Expert witnesses can be sued for negligence
Alternative dispute resolution creeps forward
Whether a Part 36 offer can be time limited
Discount rate up-date
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LEGAL and MEDICAL
A possible alternative dispute resolution system to avoid courts
Ministry of Justice consultation paper “Solving Disputes in the County Courts”
Discussion of various methods of ADR
A possible alternative to the court system
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PILJ ADVOCATE’S ADVICE
Use of expert witnesses in personal injury litigation
Selection and use of experts – “expert shopping”
Discount rate developments
No win no fee agreements
Alternative dispute resolution
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SENSIBLE SELECTION OR “EXPERT SHOPPING” LEGAL and MEDICAL
Use of experts - Edwards-Tubb v JD Wetherspoon
Selection of experts
Use of privately instructed experts as distinct from those used for legal proceedings
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BRAIN INJURY CASE MANAGERS
Tribute to the development of case management over the last 15 years
The importance of good case managers to the patient’s management and rehabilitation
The ability of good case managers to guide lawyers about what the claimant needs
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MISCELLANEOUS
Discount rate – care experts – no win no fee
ASSOCIATION OF PERSONAL INJURY LAWYERS NEWSLETTER NO WIN, HUGE FEE - BOTH SIDES LOSERS?
Court of Appeal warning about no win no fee agreements
Pankhurst v White and MIB – grotesque fee arrangements – both sides paid the cost
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LEGAL and MEDICAL THE DISCOUNT RATE AGAIN
The multiplier system and the appropriate discount rate
SENSIBLE SETTLEMENT SOLUTIONS
Altering attitudes between claimants and defendants could improve rehabilitation
ASSOCIATION OF PERSONAL INJURY LAWYERS NEWSLETTER UNDERSTANDING AND COMMUNICATION ON BOTH SIDES IS PUTTING THE SYSTEM - AND INJURED CLAIMANTS - ON THE ROAD TO RECOVERY
Changes in attitudes could lead to improved results
Not much change since the Woolf reforms in 1999
Changing attitudes
Ways of improving the system
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COMPENSATION CULTURE OR CATASTROPHIC CLAIMS
The other side of the compensation culture
Severe brain injury
Returned only to part time, sheltered work
Settled in September 2010 for £1.85 million ((lump sum £1,030,000 plus periodical payments order)
| SUMMARY | |
| PAIN, SUFFERING AND LOSS OF AMENITY | 163,250 |
| PAST LOSS | 298,178 |
| FUTURE LOSS | 1,443,805 |
| TOTAL CLAIM | 1,905,233 |
| DOB 1968 Accident 2003 Age then 35 Age now 42y 7m |
|
| PAIN, SUFFERING AND LOSS OF AMENITY | |
| Award | 150,000 |
| Interest | 13,250 |
| PAST LOSS | |
| Care | 88,509 |
| 5,638 | |
| Case management OT and Physio |
3,790 |
| Travel | 3,000 |
| Payroll | 5,922 |
| Deputy | 1,175 |
| Miscellaneous | 1,069 |
| Oliver Zangwill | 28,830 |
| Earnings | 121,946 |
| TOTAL PAST LOSS | 259,879 |
| Interest | 38,299 |
| TOTAL PAST LOSS INCL INTEREST | 298,178 |
| FUTURE LOSS Multipliers |
|
| Life | 21.86 |
| Work | 14.39 |
| Care and case management | |
| to 2014 | 102,346 |
| 2014 to | 2027 346,402 |
| thereafter | 384,449 |
| Holidays | 20,920 |
| Maintenance | 30,604 |
| Earnings | 330,682 |
| OT | 3,408 |
| Physio | 4,437 |
| Court of Protection | 220,556 |
| TOTAL FUTURE LOSS | 1,443,805 |
When the CPR were introduced, over 10 years ago, I wondered if they would be as successful in high value personal injury litigation as was hoped. I feared that attitudes were more entrenched than was realised by Lord Woolf, and that cost might be a potent driving force. The years have rolled past without much significant change in the conduct of catastrophic injury claims, but I have wondered for some time whether attitudes on both sides may be softening. I thought I had seen clear signs that some personal injury lawyers were approaching cases differently, and less contentiously.
However, my optimism was dealt a serious blow recently. I represented the claimant in the rescue case which was reported widely in the national press earlier this year. He had stopped on the motorway to rescue a young woman who had negligently crashed in poor weather conditions. Having got her out of her car which was stationary in the fast lane, and to safety, he then set about moving her car in order to prevent a further crash. Tragically, white van man crashed into him, and he is now paralysed.
You might think, on those facts, that the defendants (there were three of them) would admit liability straight away, and then bicker about apportionment between themselves. Not a bit of it! They did not admit primary liability until less than three weeks before trial, and they insisted on arguing at trial that the claimant was contributorily negligent. Not surprisingly they lost, but not before the claimant had endured three and a half years of uncertainty, amounting at times to terror. That was his word, and it gives some idea of just how awful it must have been for him and his wife, not knowing whether they would recover anything, let alone the full 100%.
Experiences like that tempt one to think that nothing has changed, but I think in reality it was just a rather extreme example of old attitudes, which are slowly changing for the better. The other side of the coin is that I see some defence solicitors' attitudes which I think are genuinely enlightened. Instead of suggesting a cheap rehabilitation solution, possibly managed by an insurance organisation, some defendants are now acknowledging that proper rehabilitation is probably worthwhile, and funding accordingly. Of course, they are entitled to expect that claimants reciprocate, by making sure that the rehabilitation is appropriate, and cost effective. Proper targets and goals are now essential, and the days of the non-specific rehab package should be over.
A recent example involved a claimant in the persistent vegetative state. She was well accommodated in a care home, but a deluxe room would have been preferable - at increased cost, of course. We agreed that we could not justify claiming that cost from the defendant, but by discussion we achieved that deluxe room in return for co-operation in relation to benefits.
The way forward, I am sure, is a combination of specialist training for lawyers who choose to do this type of work, coupled with understanding and sensible communication. We had 30 of our barristers trained as mediators not long ago, and part of the reason was to help us in the management and negotiation of major personal injury claims. We thought that the training would widen our horizons, and help us to communicate with defendants. I have had some very encouraging results with mediation, but I realise that it is not helpful in all cases. Whatever approach is adopted, I am convinced that understanding and communication on both sides will produce results, and possibly revolutionise the system.
One area where co-operation and revolution could go hand in hand is the use of the court system to resolve personal injury disputes. We are all familiar with the joint settlement meeting, and that is certainlyone area where there has been change. Settlement of high value claims is more common now than it used to be, and settlements at the door of the court are almost non-existent in my experience. However, many issues arise along the road to final settlement, and some are still decided by judges. Surely, if we co-operate, we could devise a system which would allow both sides to avoid the poor decisions which are a regular part of our litigation lives, and appoint a specialist to decide instead. To some extent, the courts may be recognising the need for specialist judges, but only the other day I was told of a lower court judge whose decision seemed to be out of line with established thinking. If he was wrong in his decision, it will cost one side many thousands of pounds when the appeal is successful; that could be avoided by making sure that the person deciding the issues is someone in whom both sides have confidence.
I am a convert to mediation, and I have had two experiences of good personal injury practitioners acting as the mediator. Of course I realise that the parties may need final recourse to the courts, but it might be possible to agree to abide by interim decisions made by a personal injury lawyer acceptable to all parties.
In ADR terms, there is a system of expert determination; an expert chosen by the parties can make a binding decision on the issue submitted to him or her. The procedure is within the control of the lawyers, and therefore so is the cost. It should be possible to limit submissions in such a way that one could define the timescale.
Another alternative could be early neutral evaluation, in which a selected person considers the claims made by each side and gives an opinion. This is not binding, but the point is that it might be very good guidance to the lawyers, and their clients, as to how a judge might approach a problem.
Bill Braithwaite QC August 2010
Last Friday I listened to a mother sobbing her heart out because her brain injured son is impossible to manage. The previous day, I discussed with a father how we could arrange suitable care and support for his son in a low awareness state. The day before that, I tried to guide a tetraplegic through the problems of housing and support needed to make his life tolerable. On Monday I discussed with doctors how a young girl of 17, injured catastrophically, could get her life back.
All caused by the negligence or carelessness of another person, or an organisation, all of whom are insured. Those injured people all depend on insurance companies to fund rehabilitation and support.
That is the other side of the insurance ambulance chasers article in Saturday's Times.
Of course the majority of insurance companies spend a fortune on smaller claims, some exaggerated, some invented, and of course many are run by lawyers at a profit, but let's not lose sight of the real purpose of our personal injury compensation system. To put right, so far as is possible, the wrong done by someone else's carelessness. In the work I do, that means to try to re-build lives of claimants and their families, caused by the thoughtlessness of another person or organisation.
It's a question no-one ever likes to be asked, but how would you like it if it was your son or daughter, or your father or mother, and you had to give up your job, move house, suffer the intrusion of insensitive insurance companies, and see your loved one suffer without remission, day in day out.
I've settled hundreds of cases over the years, worth hundreds of millions of pounds. Interestingly, even now each settlement experience is different, and some take me back nearly 20 years in the way in which they seem to show no significant advance in practitioners' thinking. During the last month I have seen one of the best defence negotiations, one of the worst, and one where a mediation was rendered unsuccessful by the positions adopted beforehand.
It is difficult to be definite about the reasons for successful settlements, because they can arise from a variety of different reasons. One of the most common at present might be poor preparation and advocacyon one side or the other (by advocacy I mean the whole range of expertise from hospital to outcome). For example, poor evidence, weak experts, unattractive presentation, or simple failure to acquire good negotiating skills.
However, I have little doubt that some of the best settlements are those in which opposing sides co-operate, either from the outset, or later.
The Rehabilitation Code of Conduct gave the appearance of being a good example of co-operation, but I always had the reservation that it was skewed to defendants' advantage. It contains phrases which worried me the moment I read them: the parties should co-operate to identify the statutory obligations that are owed to the claimant they should explore the potential for involvement of social services and the National Health Service (NHS) and other agencies they should consider instructing a suitable expert for statutory services liaison. All three points may sound reasonable, but they were all in contradiction of claimants' right - as was proved belatedly when Peters was decided. They might all be appropriate, but only in the right case, and onlyif a defendant is genuinely co-operating.
There is still ample room for co-operation in rehab, as well as in most other areas, but claimants have to be cautious about how, and with whom, they co-operate. Of course, the same would apply to defendants! Claimants are entitled to search for the best, reasonable rehabilitation which is available and suitable, but defendants can sensibly expect that the package will be appropriate for the individual, and will have realistic goals and targets, which are carefully monitored. If there are alternatives, claimants must not simply select the most expensive if there is a reasonable, cheaper solution. Goals and targets are essential, and could often be the subject of informed discussion between specialist lawyers, informed as necessary by rehabilitationists. If an expensive course of rehabilitation cannot be justified by potential results, it may be sensible to explore other options.
Of course, co-operation probably involves both sides having specialist knowledge as well as a realistic appreciation of the strengths and weaknesses of their respective positions. Many defence teams have taken a harder line on interim payments over the last year or so, but it can be counter-productive for them to do that. Huge houses are one thing, but sensible rehab can reduce the end cost of a claim by hundreds of thousands of pounds.
I think that there is a real chance that old attitudes are slowly changing for the better, and I see some defence solicitors' attitudes which I think are genuinely enlightened.
I was involved in a settlement recently which concerned a claimant in the persistent vegetative state. She was well accommodated in a care home, but her litigation friend felt that a deluxe room would have been preferable to the ordinary one she was in - at increased cost, of course. We agreed that we could not justify claiming that cost from the defendant, but by discussion we achieved the deluxe room in return for co-operation in relation to benefits.
To achieve real co-operation, I think, specialist knowledge needs to be coupled with understanding and sensible communication. We have about 30 mediators in my chambers, and we have found the training helpful in the management and negotiation of major personal injury claims, partly because it has widened our horizons, and also because it improves communication with defendants. I acknowledge that mediation is not helpful in all cases, but I am convinced that understanding and communication on both sides will produce results, and possibly revolutionise the system.
Talking of revolution, we could think the unthinkable, and ask ourselves, in a spirit of co-operation, whether the court system is an asset, a necessary evil, or an outmoded method of resolving disputes. Alternative dispute resolution comprises many different ways of settling or easing problems, and I have wondered for years whether we could harness some of the various systems which are already in use in other areas of the law. Speaking personally, I frequently find myself thinking that the weakest link in the chain from accident to finalisation of the claim is the court system. Co-operation between informed personal injury practitioners in high value claims could perhaps reduce the uncertainty and delays.
Joint settlement meetings and mediation are not the only ways of settling disputes, although they are the only two in use in personal injury claims, so far as I know. ADR covers, amongst other things, expert determination, which is where an expert chosen by the parties can make a binding decision on the issue submitted to him or her. The procedure is within the control of the lawyers, and therefore so is the timescale and cost.
Another alternative could be early neutral evaluation, in which a selected person considers the claims made by each side and gives an opinion. This is not binding, but the point is that it might be very good guidance to the lawyers, and their clients, as to how a judge might approach a problem.
One step too far, or an exciting way of co-operating?
Bill Braithwaite QC August 2010
Bill Braithwaite QC and David Knifton of Exchange Chambers in Liverpool have helped to secure an £8.35 million compensation award for a man who was left paralysed from the neck down after a car crash. The sum, awarded at Newcastle High Court, will pay for long-term care.
Mr Borowski, 27, was a back seat passenger in a work colleague's car which crashed into a ditch on the way to work. He was not wearing a seat belt, and he broke his neck, probably on the nearside door as he was thrown against it.Normally, if you don't wear your seat belt you will lose 25% of your compensation. In this case, because the claim was valued at about £10 million, it was worth trying to reduce that 25% deduction. When Bill and David were called in to the case, they concentrated on this issue, and managed to persuade the Motor Insurer's Bureau (which compensates the victims of uninsured drivers), to reduce the compensation by only 20%. That 5% improvement was worth £500,000.
2010
1st October 2008
I enjoyed the article by Phil D'Netto very much (the cost implications of claimants using clinical case managers). I thought it was expressed sensibly and moderately, even though I disagreed with most of it. I could easily see how he, and many other defence practitioners, would think that, because claimants' lawyers "may be focused on maximising their client's damages", that might impact on the case manager's performance of his or her duties. I thought that it could be useful to look a little further into what he said, bearing in mind that he is the head of the Catastrophic Injury Special Interest Group at the Forum of Insurance Lawyers..
Brain injury case management has been a particular interest of mine for many years. I lectured at the inaugural public meeting of the British Association of Brain Injury Case Managers in 1996, and I have lectured extensively on the subject ever since, including in relation to one of the cases quoted by Mr D'Netto, Wright v Sullivan. I wonder if I have seen more brain injury case managers than any other lawyer in the UK?
The thrust of his article is that there may be a tension between the case manager and the claimant's lawyers. The foundation of that thesis is that each has different duties; the case manager "whose role is ostensibly therapeutic" "promoting the claimant's independence", and the lawyers who may be focused on maximising their client's damages. I cannot assert that claimants' lawyers never try to "maximise" damages, but I can say positively that they should not do so. When I first published my book, "Brain and Spine Injuries - the Fight for Justice", in 2001, I made it clear that I do not approve of seeking to maximise. Whatboth sides should be seeking is a fair and just result.
I also think that many claimants' lawyers have progressed to realising that part of their duty is to enable the claimant to receive the best possible treatment and rehabilitation even if, or as I would say particularly if, it will reduce the claim by improving the claimant's independence. It is because claimants' lawyers are often alive to their duty to maximise the claimant's independence that they have come to use clinical case managers.
Mr D'Netto comments that case managers are often instructed directly by the claimant's solicitor and attend conferences with counsel, and that they routinely give evidence. He says later: "Case managers who disagree with the claimants' legal teams risk not being instructed in future". Taken together, those comments might be thought to suggest that case managers may not act in the best interest of the claimant. I am sure that is not what he meant, but I think it may be worth setting out the correct position.
Wright v Sullivan [2005] EWCA Civ 656 was correctly decided; it is inappropriate to think that a clinical case manager could be instructed by claimant and defendant, each side having potentially different objectives. A clinical case manager treats the patient, just as a doctor does, and must have a free hand. I have told case managers scores of times, if not hundreds, that they are treating case managers, and theymust decide what is best for the claimant.
FOIL must realise that it is not sufficient for the claimant's lawyers to exercise no supervision or control, otherwise costs can spiral without any demonstrable benefit.
I think perhaps Mr D'Netto's views are influenced by two misconceptions. First, that claimants' lawyers are maximising claims and, secondly, that clinical case managers will bend to the will of the claimant's lawyers. Neither is correct in theory. If either happens in practice, the proper remedy is to cure the individual problem, not change the system.
He suggests that the Deputy could employ the case manager, to allow "the case manager to focus on the claimant's needs rather than damages". I have never yet met a case manager who was focused on damages. I suspect that his suggestion might just be changing one perceived evil for another. The Deputy may be under a duty to "maximise" the claimant's damages, and so the tension might be the same. Of course, I would saythat a good Deputy would be as straightforward as a good claimant's solicitor and barrister, and that neither would influence the case manager inappropriately.
I think that the true remedy for the problem which Mr D'Netto, and presumably FOIL, perceive is to ensure that claimants lawyers and case managers understand that the process is a clinical one, and that the lawyers do not dictate treatment, and should not use the process to maximise damages. In return, insurers and defence solicitors could try to realise that many claimants' lawyers and case managers know far betterthan they do how to treat the claimant appropriately.
BILL BRAITHWAITE QC 8th October 2009
14. One area of the law in which there is disappointment for many litigants is in relation to interim payments. For the last 20 years I have felt that interim payments are not pursued sufficiently often by claimants, but the rules were changed fundamentally in March 2009, by the Court of Appeal in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204.
15. In that case, the Claimant's parents applied for an interim payment of £1.2 million, in order to buy a house for his future. The High Court judge granted the application, but the Court of Appeal reversed the decision. The appeal raised the question of the correct approach to an interim payment in a heavy personal injury claim where the damages, when finally assessed, are likely to include a periodical payments order.
16. The Court of Appeal said that, for the purposes of an interim payment application, the judge should not normally begin to speculate about how the trial judge will allocate the damages. As a rule, he should stop at the figure which he is satisfied is likely to be awarded as a capital sum. However, they added that there will be cases (Braithwaite v Homerton University Hospitals NHS Foundation Trust [2008] EWHC353 was one such) in which the judge at the interim payment stage will be able confidently to predict that the trial judge will capitalise additional elements of the future loss so as to produce a greater lump sum award. In such a case, a larger interim payment can be justified. Those will be cases in which the claimant can clearly demonstrate a need for an immediate capital sum, probably to fund the purchase of accommodation. In our view, before a judge at the interim payment stage encroaches on the trial judge's freedom to allocate, he should have a high degree of confidence that such a course is appropriate and that the trial judge will endorse the capitalisation undertaken.
17. The Court of Appeal summarised the approach which a judge should take when considering whether to make an interim payment in a case in which the trial judge may wish to make a PPO. The judge's first task is to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both, but they considered that the practice of awarding accommodation costs (including future running costs) as a lumpsum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis. The interim payment will be a reasonable proportion of that assessment. A reasonable proportion may well be a high proportion, provided that the assessment has been conservative. The objective is not to keep the claimant out of his money but to avoid any risk of over-payment.
18. The judge will be entitled to include in his assessment of the likely amount of the final judgment additional elements of future loss. That can be done when the judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone. The Court of Appeal endorsed the approach in Braithwaite. Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested. For example, where the request is for money to buy a house, he must be satisfied that there is a real need for accommodation now (as opposed to after the trial) and that the amount of money requested is reasonable. He does not need to decide whether the particular house proposed is suitable; that is a matter for the Court of Protection. But the judge must not make an interim payment order without first deciding whether expenditure of approximately the amount he proposes to award is reasonably necessary.If the judge is satisfied of that, to a high degree of confidence, then he will be justified in predicting that the trial judge would take that course and he will be justified in assessing the likely amount of the final award at such a level as will permit the making of the necessary interim award.
19. Those passages from the Court of Appeal's judgment in Eeles make it clear that claimants' lawyers will have to re-think the mechanics of applying for interim payments. The principle is the same as it should always have been; only apply for an interim payment if the claimant really needs one. However, the words underlined above ("by evidence") point us in the right direction; as always, evidence is fundamentally important. I suspect that claimants' lawyers will now have to front load interim payment applications, by obtaining evidence that the interim payment really is needed now, in order to make the claimant's life acceptable. It is possible that we will have to embark on asking courts to decide preliminary issues, as was done in Williams v Williams [2008] EWHC 299 (QB). That seemed an odd approach at the time, but in the light of Eeles it might become the norm.
20. Sadly, front loading and preliminary issues are bound to increase the cost of litigation, but if a claimant needs an interim payment for a good reason then an application will have to be made. I would expect insurers to defend many of these applications in the future.
Contributory negligence
21. Another scenario which causes difficulty for claimants seeking to recover interim payments is where the defendant seeks to lay some of the blame on the claimant. There are two common examples of this in road traffic accident cases, namely (1) where the claimant was not wearing a seat-belt (assuming that one was fitted) or crash helmet, and (2) where the driver was drunk and the claimant should not have agreed totravel with him. It is frequently said that such an allegation prevents the claimant from recovering an interim payment, but I do not agree, and I have had experience of cases in which it has been argued that the claimant should nevertheless recover up to 75% of damages by way of interim payment.
I was discussing judges recently with a first-rate personal injury silk. We were in the middle of a settlement meeting, and were agreeing that it was in the interests of both sides to reach an agreement, because the alternative was to take the dispute before a judge. That may seem obvious, but we then went on to discuss the "designated civil judges" around the country, and we agreed that they are of notably poor quality. It was startling just how many major cities are badly served by their senior civil judges.
Not so very long ago, I was listening during lunch to barristers telling stories about judges. I was so horrified at some of the stories that I nearly wrote an article about them, but decided that to do so might identify either the participants or the judges.
Is it any wonder, then, that personal injury practitioners might not be satisfied with the service currently being provided by the courts? I haven't even mentioned yet the many examples of judges (some of them no doubt excellent in their own fields) trying major personal injury claims without any experience of such work.
If it applies to us, it must apply also to all litigators in specialist areas. As most types of litigation are specialised nowadays, that must mean that many litigation lawyers are less than satisfied with the service which is currently being provided by the court system.
It is entirely possible, I think, that specialist advocates will gradually find that the quality of judging is so far below their own standards that they are driven to look for alternatives, as has happened in more abstruse areas of the law.
Mediation seems to be on the increase, and I have detected a significant change in my approach to mediation; as a personal injury practitioner, I have thought for years that mediation was unlikely to be of anyvalue in a case where there are competent advocates on either side, because good legal teams can settle cases. I still think that there is a lot of force in that point of view, but I wonder whether mediation might develop in a way that makes it more valuable. We certainly think so in my chambers, because we now have about 30 accredited mediators.
Mediation is a worldwide phenomenon, and is spreading all the time. It is important in America (particularly in insolvency, apparently), and there is an organisation of European judges committed to promoting mediation within member states. Could it take over here?
I represented a claimant recently in a mediation in which both sides invited the mediator, who was a personal injury silk, to be "interventionist" (the other word used for that approach is "evaluative"). We wanted him to express views about all aspects of the claim, and he did. He finished the mediation by telling us that the Defendant had made his last offer, that it was a good one, that a judge would not give us more, and that we should accept it. I found that very valuable.
I do have to make it clear that I am seeing this problem from a specialist's position. All my cases require careful judging, preferably by someone who knows the topic, and brings fairness and knowledge to the process. Occasionally, we get precisely that type of judge, and then it is a real pleasure to be able to tell a claimant that, whether he wins or loses, he has had a good, fair trial. I find that most claimants recognise fairness when they see it. I do also have to add another reservation; sometimes one presents a case to a non-specialist and he or she manages it in a first-rate way, and reaches the right result. The same applies to judgments in other cases; in one recent one, the judge commented that he had not "laboured in this particular vineyard" previously, but nevertheless he gave a very good judgment.
Because I hold these views, I was delighted to see recently that Mr Justice Lightman said that ".... there is a crucial need for mediation as a palliative - as the only available recourse of those who cannot afford the costs and risks of litigation, and the chance of justice that it affords."
Interestingly, he was worried that the Court of Appeal had effectively discouraged mediation in a recent decision, by refusing to impose it on parties, but I see it from a different perspective. My impression is that trial lawyers on both sides of personal injury litigation are gradually coming to recognise that the court system is not providing a service of value, and that therefore we should look elsewhere. In otherwords, it is possible that we will drive alternative dispute resolution forwards, even though the Court of Appeal has not forced it on us.
We are the customers of the court service, and if we decide that we are not getting what we are entitled to (hugely increased court fees may raise our entitlement, or at least our expectation), we might do what customers do all over the world whenever they have a choice; vote with our feet.
Of course, you do have to have a choice, and that means an effective alternative system for resolving disputes. I can see the possibility that personal injury lawyers will get together to create their own system. It would not be easy, but it would certainly be feasible. It has been done in the past in isolated areas, and it could be done now by agreement. Looking for example at high value personal injury claims, it would be possible to agree early on that the claim should be mediated. That could be a binding agreement, but it would not resolve the entire range of litigation procedures, for example the interlocutory management and the final trial. If the parties agreed to nominate a personal injury specialist as a mediator, in the widest sense of the concept, that person could do all the interlocutories - almost certainly far better than the district judges who so often make such a mess of these big claims. The trial would be more difficult, but could be managed in the same way as an arbitration agreement.
An incidental effect would be a reduction of costs, which ought to appeal to the insurers in this market, and incidentally to the National Health Service, which continually complains about the cost of compensating for the negligence of their employees. Perhaps one of the innovative insurers will take the initiative, and start to develop an alternative dispute resolution system.
BILL BRAITHWAITE QC 30 September 2007
We seem to read a lot nowadays about "the compensation culture", so much so that the phrase has come to mean dishonesty at worst, or undignified and inappropriate scrounging at best. It is obviously on the political and legal agenda. This barrage of criticism seems to have started with the Government, but now the Conservative Party has joined in the hue and cry. Compensation claims are said to be costing the economy £10 billion a year as Britons increasingly look for someone to blame when things go wrong. Norwich Union are apparently preparing a briefing document for Stephen Byers, outlining "how the compensation culture can be beaten".
I feel strongly that it's time someone stood up for the hundreds of thousands of genuine, honest people in this country who have suffered injury because of the carelessness of another person or organisation, and who have then sued to recover compensation.
As I write this, my mind is full of examples of such people whom I've met over the last dozen years, travelling the country to see people who have suffered catastrophic injuries at the hands of others. For example, the woman driving along quietly with her husband when an off-duty police officer, driving dangerously, crashed head-on into her car, killing her husband and causing her to lose both legs and one arm. The man on his motor bike who lost both his legs and his wife when one of two young hooligans, racing, crashed into them. The industrial accidents where employers have failed to take elementary safety precautions, leading to the most appalling injuries. Medical negligence at birth, when doctors and medical staff are acting so carelessly that one sometimes wonders whether they were paying any attention to the patient; the result is often a child born with cerebral palsy, condemned to a life full of difficulty.
Another vivid picture in my mind, taken as a composite from over a thousand such people whom I have had the privilege of meeting, is their dignity, courage, patience, endurance, and humanity. I could expand that list, but my overall impression is so far from this "compensation culture" that I find it offensive to hear these people, who should know better, lumping all claimants together. I should like some of them to accompany me on my travels, and see how they feel once they have experienced real suffering.
Which brings me to another point where I am at odds with this one-sided criticism against complainants. Why don't we hear more from politicians about the appalling way in which some grievously injured people are treated by the system? The victim of a head-on crash who was kept out of her money whilst various defendants argued about which of them was most to blame. The catastrophically injured person left by the State to manage on their own, because resources are insufficient. Those whom the legal system let down, either through failure to specialise in their problems, or because of a failure to understand the extent of their need.
Of course, the legal system itself is responsible for a great deal of unnecessary cost. If injured people were treated decently by the system from the outset, less would have to be spent on pursuing their claims, and protecting them from the injustice of under-compensation.
An incidental injustice, in my opinion, has been the withdrawal of legal aid from claimants in personal injury litigation. It was commonly acknowledged at the time that the legal aid fund was not out of pocket, either significantly or at all, in the long-term management of personal injury claims, but nevertheless legal aid was abolished.
Maybe those who jump on this bandwagon should realise that there are two sorts of claimant; the honest and the dishonest. By far the majority of severely injured claimants are honest, in my experience. We would all deplore the dishonest claims, but that is no reason to offend all the genuine sufferers, all of whom would tell both this Government and the Conservative Party that they would far rather put the clock back, have no injury, and no compensation.
6 October 2004
BILL BRAITHWAITE QC, who specialises in claimants' brain and spine injury
In a multi-million pound clinical negligence case, the District Judge made an odd order, to the effect that the claimant could amend his Particulars of Claim in such a way that an additional expert was needed on causation, but he refused the claimant permission to call an appropriate expert. He appeared to think that the report of that expert should be agreed if possible, and that failing agreement something else should be done. Because he did not grasp the nettle, the result was that an application came before him in the week before trial, repeating the application for permission. He refused, saying it was too late. He appeared to give no thought to the fact that it was his order which had been to blame, nor did he consider the obvious fact that the claim might fail due to lack of this expert.
The real interest of the case, apart from the poor quality of the decision-making by the District Judge, was that it was possible to appear at trial two days after the refusal of permission, persuade the High Court Judge to abridge time and dispense with notice to appeal, grant permission to appeal, and allow the appeal. It was obvious to him that it would not be fair to allow the Defendants to "cash in" on the Claimant's difficulty, and that justice required this extra expert. Sadly, the end result was an adjournment, which was far from ideal for the Claimant and his family.
The claim came back before the Court and the Claimant won on liability.
16 November 2005
Barristers are under pressure at the moment, for a wide variety of reasons. We complain vigorously about government interference in the funding of litigation, and significant changes in the rules governing our profession, but one of the major reasons for the pressure might be just plain bad management.
Take a look at some of the headlines from the legal press over the last 12 months - "Maitland barrister defects to XXIV Old Buildings", "Number of pupillages hits an all time low", "Chambers set to split in two" "1KBW snares St Philips childcare barrister", "Matrix spreads its web over Hailsham barristers", "3/4 South Square barrister joins St Philips", "No 5 Boosts PI With St Philips Barrister", "McDonnell leaves 9 Stone Buildings for own chambers". The list of sensationalist headlines goes on and on.
The Bar is a notoriously conservative profession, and for years any chambers which have taken a progressive approach to the management of their business have run the risk that those in authority would disapprove.
In a small profession, even unspoken criticism can have a real effect. Now that the pressures are affecting so many barristers' chambers, the Bar as a profession is starting to notice that we are all running businesses (or should be), and that therefore we may have to take heed of some normal business principles. Of course, for many it is too late; chambers have been collapsing over the last few years, or merging in an attempt to avoid dissolution.
One of the fundamental aspects of ordinary business management is recruitment. It is frequently, if not universally, considered to be inappropriate to "poach"barristers from other chambers, although most businesses would consider head-hunting to be a normal part of their lives.
Recruitment and selection of personnel is a specialised business, and chambers may find that they either have to take advice from recruitment professionals, or employ recruitment consultants. That would necessarily involve individual barristers being identified as suitable, approached with a view to moving to join an alternative set, and possibly even being offered incentives to make an attractive package. Some chambers have detailed remuneration packages for pupils, and that might have to extend to qualified barristers at all levels of experience.
Interestingly, we have started to see barristers moving chambers on a more regular basis. It has been, and probably still is, our tradition that you join a set of chambers with a view to staying there for life, but that may change. It is becoming a matter of survival to find a chambers which gives the individual the best chance of building a career. Therefore, those barristers who have an understanding of the importance of running a good business will start to assess their opportunities. For example, it may become relevant to examine all aspects of one's own chambers, and various others, in order to assess career opportunities. That will involve a consideration of management and administration, including the quality of the systems of public relations, marketing, fee collection, staffing, recruitment and selection.
Of course, many traditional barristers would take issue with the notion that chambers operate a business; we are a profession, and must not lose sight of that fact. I agree with that view, but see a very obvious compromise, which is that we are running businesses providing professional services. Provided we all remember that commercial pressures must not intrude inappropriately, we should be able to combine good business practices with high professional standards.
Of course, a weakness of the profession in this area has always been that all barristers in chambers are self-employed, and the conservative view is that therefore each individual has an absolute right to manage his or her own affairs with minimum regard to the overall interests of chambers. More progressive chambers may now take a more corporate view, and ask members to put the interests of the corporation on a par with their own. Another traditional perception is that a tenancy in chambers is a job for life. Part of the reason for this is the notion that, because barristers are not partners, there is no mechanism to ask a member to leave. An alternative explanation may be that, in the past, the pressures have never been so severe that chambers require to operate at maximum efficiency in order to survive; in toady's climate, that attitude may have to change.
Good recruitment may be one of the essential changes which the Bar must make in order to continue to provide a service of real importance. That may mean that "poaching"becomes an out-dated word, and that head-hunting develops into a respectable part of our business/professional world. If it did, we would gradually create high quality organisations, offering first rate services.
BILL BRAITHWAITE QC
This article appeared in The Times, 11 January 2005
The public and the media are frequently critical of the so-called "compensation culture". They don't always make it clear precisely what they complain about, but it seems to be a combination of fraudulent claims, large claims, successful claims, or indeed any claim in which the claimant recovers compensation. Lord Hobhouse joined in these criticisms last year, in the case of Tomlinson v Congleton Borough Council [2003] UKHL 47. In that case, the House of Lords reversed the decision of the Court of Appeal, and ruled that the Claimant should not recover damages for his broken neck, caused when he dived into shallow water in an inland lake in Cheshire.
I can readily understand some of the criticisms; for years we have joked about various apparently extreme claims, one of the recent in the press being the man who fell down stairs at home having been out drinking. Put that way, the claim does sound unrealistic, but of course there was more to that case than was reported (I represented the claimant). What troubles me is that this denigration of the supposed compensation culture will dissuade claimants, and more particularly claimants' lawyers, from pursuing perfectly good and reasonable claims.
The Claimant in Tomlinson had been visiting a local country park for years, and it was common practice by visitors to swim in the lake, despite notices prohibiting swimming. The Councils which owned and managed the lake had decided that, because they felt that there was a history of misuse of the lake for swimming, and possibly several accidents, they would convert the sandy beaches round the lake into marginal planting which would be unattractive to people. The Councils had been pursuing this for some time, but funding had only just been made available at the time of the accident.
Lord Hoffman emphasised that one must balance risk, gravity of injury, cost and social value. He said:
".... the question of what amounts to 'such care as in all the circumstances of the case is reasonable' depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other..... This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care ....".
There are two other related considerations which are far more important (than cost: my note). The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk."
Another interesting emphasis in Lord Hoffman's Opinion is "Free will":
"I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities, he may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake."
Lord Hutton "was attracted for a considerable time" by our arguments. Nevertheless, he decided that the Claimant should not recover compensation, because several cases cited by him express a principle which is valid today, namely that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff, and to impose a duty on him to do so. He did recognise, though, that there might be exceptional cases where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of people had fallen.
Lord Hobhouse said:
".... it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. ... In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced".
A very clear line of reasoning running through all the speeches is that legal policy must balance the needs of all concerned in any activity which is said to attract a duty by an occupier to prevent injury to a visitor or trespasser. One of the functions of the law lords is to establish legal policy, and therefore this is an important decision. It probably emphasises more than has been done previously that the balancing exercise which personal injury lawyers are all used to dealing with (risk of injury, severity of probable injury, practicality and cost of prevention) must also include as a major element in appropriate cases the twin considerations of impact of preventative measures on other people, and the freedom of the individual to undertake risky activities at his own peril.
For claimants' lawyers, like me, Tomlinson is a disappointing result of the balancing exercise. I have to recognize, though, as do all lawyers, that we have law lords to tell us the answers to questions like this.
Having said that, this is not the end of all diving cases, or of all claims in which young men and women are injured whilst undertaking risky activities. As noted above, Lord Hutton recognised that there might be exceptional cases, and one of the cases cited to their Lordships was Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138, in which the Claimant dived into Folkestone harbour and broke his neck on concealed underwater concrete beams which protruded from the bed of the harbour. If he had done it during a sunny, summer day, rather than at midnight on Boxing Day, I would expect his appeal to the House of Lords to succeed. What will now need to be done is to make sure that the preventative steps, which are alleged by a claimant to be necessary, do not destroy the pleasures of a significant majority. Also, one has to recognise that people are entitled to run risks in their pursuit of leisure and pleasure (I race historic cars), and that a claim is only likely to succeed if the balancing exercise comes down firmly in favour of the claimant, after considerable allowance has been made for "the social value of the activities which would have to be prohibited", and allowing "people of full capacity to decide for themselves whether to take the risk.".
My advice to claimants' lawyers would be to consider any case involving natural hazards and dangerous activities with great care. We should not be dissuaded from pursuing a claim simply because the hazard is a natural one, or because the activity is risky. I do not mean for one moment that we should ignore the House of Lords, or that I disapprove of their judgment. Of course that case is decisive, and will prevent some such claims from being commenced. However, all personal injury cases depend on their individual facts; to use Lord Steyn's phrase, they are "fact specific".
16 January 2004
Bill Braithwaite Q.C. represents claimants who have sustained brain or spine injury.
For the Leeds and Yorkshire Lawyer
The case of Sowden v Lodge [2003] EWHC 588, a decision of Mr Justice Andrew Smith on the 25th May 2003, will doubtless be used by defendants to try to persuade claimants' solicitors to abandon their claims for the full cost of care at home. Stated simply, the issues were whether
1 the claimant would live in her own accommodation, or residential accommodation shared with other disabled people, provided by the local authority, and
2 if the former, whether the local authority would pay.
As the claimant lost the first point, it may appear that this case is indeed a shift in legal policy, in favour of reducing care claims. However, I believe that this is not the correct interpretation of the decision, and the purpose of this article is to warn claimants' practitioners not to be browbeaten by this decision.
The well-known cases of Firth, Bell and Ryan were considered, and approved by the judge. Another case cited to the judge was Cunningham v Harrison, a 1973 decision of Lord Denning, in which he said (he was generally rather against these big claims): "There should be moderation in all things, even in a claim for personal injuries. Let him have all such reasonable expenses as are appropriate to a normal person so placed, but let them not be increased by his exceptional personality." At the time of the trial, the claimant had been living at her present residential home for about five years. It comprised three bungalows, each with six residents. She had had no contact with her father for many years, and had not seen her mother or sisters for about three years. Various complaints were made on behalf of the claimant about the quality of the care at the home, but they were rejected. The evidence about the claimant's own wishes for her accommodation seems to have been unsatisfactory. The judge specifically assumed that the local authority would fulfil its duty under the National Assistance Act 1948, and would provide accommodation appropriate to the claimant's needs; he did not speculate about possible changes in the statutory regime. One argument put in favour of a private arrangement of accommodation was that, because the purpose of damages is to return a claimant to his or her pre-accident position, this must mean that she could live independently in her own home, and that such an arrangement would have benefits for the claimant. Various arguments were put forward in relation to the benefits which would arise if private accommodation were chosen, such as choice of carers, higher standard of care, control over the routine, continuity of care, and the ability to resist institutionalisation. The judge considered all these points to be potentially relevant, but decided on the evidence that the claimant was not able to play any real part in selecting carers, and that the quality of local authority care would not necessarily be lower than privately arranged care, even though the latter would be more intensive. On the other hand, he (rightly in my opinion) considered the importance of social isolation, which is always a material consideration in deciding on a plan for life. The overriding feature of the case, it seems to me, was that the claimant had been living in a residential arrangement for 10 years, and had not been discontent. The judge concluded that it was in the interest of the claimant to have a residential arrangement. It is sometimes said by insurers to be significant that the claimant has recovered only 50% under a liability trial or settlement (as had happened in this case). This was argued here, on the basis that therefore the claimant would not be able to afford private accommodation for the rest of her life, and that there would thus be a disruptive change at some time in the future. The judge did not need to make a specific finding on this submission, because he had already decided that local authority care was appropriate, but he did say that this would only have been a "marginal" consideration. Another argument put forward was that, if private accommodation was in the claimant's interest, the local authority would be under a duty to provide her with her own accommodation, and the assessment of damages should be made on the basis that they would do so. This is based on section 21 of the National Assistance Act 1948. Had the judge decided that private accommodation was appropriate, he would not have upheld this argument by the defendant. This case emphasises the very real need for careful consideration, during the preparation of the claim, of the claimant's plan for life. As I repeat in my recent book (Brain and Spine Injuries - the Fight for Justice), it is essential to discover what the claimant and his or her family really want. It is not universal to prefer private accommodation following a catastrophic injury, for different reasons, one being the inability of the family to cope with ongoing care, and another being the social isolation which can arise (although this should be reduced or eliminated by good case management and care regimes). If one does not pay sufficient attention to this vital part of the claim, then the evidence will be insufficient, as it obviously was in Miss Sowden's case. As always, evidence is essential, both factual and expert. Once specialist lawyers have discovered what the claimant really wants, it is almost always possible to find the evidence in support. On the 31st July 2003, the House of Lords gave a landmark judgment in the case of Tomlinson v Congleton Borough Council [2003] UKHL 47. They reversed the decision of the Court of Appeal ([2002] EWCA Civ 309), and so ruled that the Claimant should not recover damages for his broken neck, caused when he dived into shallow water in an inland lake in Cheshire.
I am deeply disappointed that John Tomlinson, who is bearing catastrophic injuries with dignity and fortitude, should be deprived of compensation, as will all, or most, other young men (and there are a lot of them) who break their necks in the same way. The Claimant had been going to this country park for years, and it was common practice by many visitors to swim in the lake, despite notices prohibiting swimming. The claim was presented on the basis that he was a trespasser (see below), and that therefore the Occupiers Liability Act 1984 applied. The Councils which owned and managed the lake had decided that, because they felt that there was a history of misuse of the lake for swimming and the like, and possibly several accidents, they would convert the sandy beaches round the lake into marginal planting which would be unattractive to people. The Councils had been pursuing this for some time, but funding had only just been made available at the time of the accident. Lord Hoffman delivered the first speech. He gave me the impression during argument that he had made up his mind before the appeal commenced, but his Opinion is detailed and thoughtful. He held that the phrase "things done or omitted to be done" on the premises means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers, and that in this case the water was perfectly safe for all normal activities. The foundation of his decision, therefore, was that there was no risk to Mr Tomlinson due to the state of the premises, or to anything done or omitted to be done on them, and therefore there was no risk of a kind which gave rise to a duty under the 1984 Act, or indeed the 1957 Occupiers Liability Act. That decision was sufficient to decide the appeal against the Claimant, but Lord Hoffman went on to consider the other aspects of the case. He emphasised that one must balance risk, gravity of injury, cost and social value. He said:
".... the question of what amounts to 'such care as in all the circumstances of the case is reasonable' depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other..... This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care ....".
"I do not however regard the financial cost (my note: it was probably about £5,000) as a significant item in the balancing exercise which the court has to undertake. There are two other related considerations which are far more important. The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk."
Another interesting emphasis in Lord Hoffman's Opinion is "Free will":"I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities, he may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake."
".... the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.".
Lord Hutton, who was deeply impressive, "was attracted for a considerable time" by our arguments. Nevertheless, he decided that the Claimant should not recover compensation, because several cases cited by him express a principle which is valid today, namely that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff, and to impose a duty on him to do so. He did recognise, though, that there might be exceptional cases where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of people had fallen. He inclined to the view that dark and murky water which prevents a person seeing the bottom of the lake where he is diving can be viewed as "the state of the premises", which is contrary to the other Opinions. Lord Hobhouse said:".... it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. ... In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced".
Lord Scott, who was also exceptionally impressive, felt that the Claimant was not a trespasser, contrary to the other opinions. I felt, though, that the most significant part of his speech was the following passage, because it combined sympathetic understanding with analysis of the wider implications and considerations, which is the essential function of the law lords:"Mr Tomlinson was not diving in the normal sense, nor was he swimming. He simply ran into the water and when he could not run any further, because the water was above his knees and galloping action that we all adopt when running into the water on a shelving beach had become too difficult, he plunged forward. This is something that happens on every beach in every country in the world, temperature and conditions permitting.... He was not taking a pre-meditated risk.... He was a high spirited young man enjoying himself with his friends in a pleasant park with a pleasant water facility.... And why should the Council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone."
A very clear line of reasoning running through all the speeches is that legal policy must balance the needs of all concerned in any activity which is said to attract a duty by an occupier to prevent injury to a visitor or trespasser. One of the functions of the law lords is to establish legal policy, and therefore this is an important decision. It probably emphasises more than has been done previously that the balancing exercise which we are all used to dealing with (risk of injury, severity of probable injury, practicality and cost of prevention) must also include as a major element in appropriate cases the twin considerations of impact of preventative measures on other people, and the freedom of the individual to undertake risky activities at his own peril. For claimants' lawyers, like me, this is a disappointing balancing exercise, because the bare facts remain that the Council operated this leisure park as a tourist attraction, knowing that by doing so they were encouraging young people into an area and an activity where they would run risks. I have to recognize, though, as do all claimants' lawyers, that we have law lords to tell us the answers to questions like this. There is no doubt that, if the Council had not removed the beaches round this lake since the accident, this decision would benefit many people, because the majority of the public who visit the leisure park (160,000 a year) would now be able to use the beaches without hindrance. I think, on balance, Lord Scott's speech is compelling. Having said that, this is not the end of all diving cases, or of all claims in which young men and women are injured whilst undertaking risky activities. One of the cases cited to their Lordships was Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138, in which the Claimant dived into Folkestone harbour and broke his neck on concealed underwater concrete beams which protruded from the bed of the harbour. If he had not done it at midnight on Boxing Day, I would expect his appeal to the House of Lords to succeed. What will now need to be done is to make sure that the preventative steps, which are alleged by a claimant to be necessary, do not destroy the pleasures of a significant majority. Also, one has to recognise that people are entitled to run risks in their pursuit of leisure and pleasure (I race historic cars), and that a claim is only likely to succeed if the balancing exercise comes down firmly in favour of the claimant, after considerable allowance has been made for "the social value of the activities which would have to be prohibited", and allowing "people of full capacity to decide for themselves whether to take the risk.".Bill Braithwaite Q.C. represents claimants who have sustained brain or spine injury.
8 August 2003
This article appeared in Solicitors Journal in summer 2003
I feel occasionally that some courts dealing with catastrophic personal injury litigation have lost sight of the concept of justice. They seem to be intent on imposing single joint experts on litigants, regardless of the wishes of the parties, and blind to the obvious problems which such an appointment is likely to cause. I have seen two clients in the last week who have suffered in this way. They were both respectable women before the accident, both earning good salaries. They both sustained non-paralysing spinal injuries, both producing complicated symptoms and poor outcomes. In each case the court imposed single joint experts, and in both cases the experts have taken against the claimant. The result is that the claimants are faced with the prospect of having to go to trial knowing that they cannot rely on the experts. If they cannot persuade the courts to change the order for single joint experts, they may well have to accept an offer which is lower than they are entitled to expect. Both cases are complicated by video surveillance evidence, purportedly showing either that the claimants are dishonest, or that they are less disabled than they think. Both claimants maintain their assertion that they are honest, and that they really are as disabled as they say. I find it interesting to analyse the thinking behind single joint experts. I accept that, in areas unlikely to be contentious, a single joint expert may represent a small saving in cost, in that only one expert is instructed instead of two. However, that same saving could be made if the other side agreed such non-contentious reports, which has always been possible, and which was part of our usual practice before Lord Woolf's changes. If the area is probably contentious, it may well be more expensive to go down the single joint expert route, because all that will happen is that one side or the other will disavow the single expert, and obtain their own report. That happened to me recently in quite an amusing way; the expert appointed was known to be defence-orientated, but made a point (knowing that I was representing the claimant) of reporting fairly, thus producing high figures for the claimant. This produced howls of anger from the defence, who then attacked the expert's reasoning, and said that they were going to cross-examine her at trial. In my opinion, they would have been entitled to instruct their own expert had they chosen to do so, because it just is not fair to decide issues of substance (that particular point involved over £5 million) in the knowledge that the single joint expert is challenged. Continuing the analysis, I frequently wonder why there seems to be this insistence on single joint experts. One of the usual explanations given by district judges, masters and judges is the saving of cost. However, this surely does not stand up to scrutiny. If the parties agree that they should have an expert each (as they usually do on the major issues in catastrophic personal injury litigation), what right does the court have to intervene in that decision. I perceive the function of the courts to provide a system of justice for the parties. Of course I would support the notion underlying Lord Woolf's changes, that it is not permissible to leave the parties entirely to their own devices, without some form of control by the courts. It is that balancing exercise, though, which is currently suspect; courts seem to put cost at the top of the list of priorities, and some of them (particularly some of the designated civil judges, who seem to have been brainwashed) are deaf to the argument that justice comes first. In any event, it is the parties who bear most of the cost - the loser pays. The only cost to the state is the provision of the courts and the judges. If the judges were to say that the cost of provision of courts and judges is important, the answer might well be that, if the parties are allowed their own experts, the end result will be that each side will have the opportunity to make a good assessment of the strength of its arguments, and thus to assess the prospects of success in the case. In serious cases, that can only be done effectively be discussing all aspects of the claim in depth with the relevant experts. That will either lead to a compromise, or the case will have to be tried. If it is settled, no court time is wasted. If it fights, then there must be an issue on which it is possible to have more than one expert opinion, and therefore it is permissible to have a trial. That is what the courts are for. This question of assessing the strength of your own case is an important element of the single joint experts controversy. I find, again and again, that it is helpful to discuss matters with an expert, so that one can see precisely what his or her opinion really is. It is often not sufficient to read a report, or a joint statement prepared by experts, because one cannot be confident that they have considered all aspects of the problem in the correct way. Only recently, I had a consultation with an expert in a case in which there are four brain injury "experts", all discussing how best to manage the claimant's treatment. Of those four (two for the claimant and two for the defendant), three are truly expert in the topic of long-term management and outcome following traumatic brain injury; the fourth is not. Even the knowledgeable defence expert has to distance himself from the opinions being expressed by the fourth. And yet, that fourth expert is precisely the type of expert whom the courts would consider to be a suitable single joint expert. If he were, he would give the most ignorant opinion, and would cause a significant injustice. The position is complicated further by the fact that not all experts are reliably fair, or even honest. This is a quote from a recent judgment: "His evidence on this matter had been given with conviction and authority, he stating that he had a clear recollection of the wording. When he had to admit that he was wrong and to accept that he had been misleading the Court, he stated that he had made an assumption. This conduct can only be castigated as both disgraceful and dishonest. It clearly casts doubt upon the remainder of his evidence and the independence of his opinions.". That man might have been a single joint expert. Continuing the analysis, I often wonder what a court would do if, having ordered single joint experts, the party dissatisfied with the resulting opinion obtained his own report from an alternative, reputable expert. If that opinion conflicted with the single joint expert's opinion, and assuming that it seemed to be a respectable difference of opinion, what order would a court make when confronted with the new report? Would it really take a stand, and refuse permission for that fresh expert to be called, knowing full well that there was a respectable expert taking a significantly different view, and that responsible lawyers felt it appropriate to call him or her to challenge the single joint expert? I find it difficult to imagine that any court would do that, but I frequently meet practitioners who positively expect precisely that decision from the courts which they know. I travel all round the country, and ask solicitors and barristers about this problem, and they are universally despondent about the prospects of getting a fair hearing on this point; they seem to find that judges just won't listen. I must emphasise that these worries are related to catastrophic personal injury litigation. I acknowledge that different considerations may apply when damages are small, so that the cost becomes an overwhelming burden. But in cases where damages are measured in millions, and experts' reports cost about a thousand, the scales are tipped the other way. This is a problem which affects both sides equally, and therefore I wonder if it might be one topic on which both claimants' and defendants' lawyers could unite. I saw a very sensible letter recently from a major defence firm, suggesting separate experts in the areas of importance, and joint ones in the uncontroversial matters; in fact, they positively refused to have joint experts in the important areas. Perhaps the time has come when senior practitioners on both sides should recognize that this has become a major problem, and should start the process of modifying the system so that catastrophic personal injury litigation can be managed fairly to both sides, and the courts can do their duty to achieve justice.
BILL BRAITHWAITE Q.C., who specialises in catastrophic brain and spine injury.
5 April 2003
This article appeared in Personal and Medical Injuries Law Letter in summer 2003
I have long been fascinated by video surveillance evidence of personal injury claimants, obtained by enquiry agents instructed by defendants. It raises so many different points, and has such an interesting effect on personal injury litigation, that it has become a topic on its own. I have been prompted to these thoughts by the decision in Jones v University of Warwick [2003] EWCA Civ. 151; The Times, February 7, 2003, reported in Quantum in March 2003.
In that case, the Defendants obtained damaging video evidence of the Claimant by posing as market researchers, and interviewing her in her home. The Court of Appeal seems to have decided that the video evidence was obtained improperly, but that it was admissible nevertheless. However, if I have understood correctly, the Defendants were ordered to pay the costs of obtaining the video evidence and of obtaining the order permitting its use at trial. I assume that the video evidence was damning against the Claimant. If that is so, I am surprised that, on these facts, the Defendants had to pay those costs; I should have thought that, if the video demonstrated that the Claimant was over-claiming significantly, and if she failed to beat the payment into court, she should have borne the costs herself.
The case of McNally v RG Manufacturing Ltd 2001 Lloyd's Rep I.R. 379 decided that it could sometimes be legitimate to mislead a dishonest claimant or infringe his privacy in order to challenge an inflated claim (but this was before the implementation of the Human Rights Act). On the other hand, there was a Scottish decision reported in The Times on the 21st April 2003 (Martin v McGuiness - Court of Session - Outer House - Lord Bonomy), which gives a more detailed interpretation of the interaction of claimants' and defendants' right in the light of European law. In that case, the investigator had gone to the pursuer's house and spoken to his wife, pretending to be a former Army colleague; this was held to be reasonable and proportionate conduct by the defender to protect his rights, and as a contribution of the wider rights of the community, and therefore necessary in a democratic society. The court was not acting incompatibly with the pursuer's Article 8 right by admitting the evidence.
It is unusual for me to take a view on video evidence which is sympathetic to insurers, because I tend to think that their use of such evidence in severe personal injury litigation leaves a lot to be desired. I applaud the discovery of fraudulent claimants, and I am wholly in favour of using video evidence to catch them out. I have had a couple of experiences (during 11 years in silk) in which my clients have been revealed as either fraudulent, or grossly exaggerating, by videos, and I have been delighted that justice has been done. Incidentally, it may surprise defence practitioners, but claimants' lawyers like me prefer not to be tarnished by dishonest claimants.
Where I find I differ from insurers is in their selection of which claimants to pursue, and the interpretation they put on the results. Although I sympathise with claimants who have their privacy invaded, I can understand that frequently this is the only way they can be watched. I suppose I could even accept a policy decision to video all claimants in substantial personal injury claims, simply on the basis that the large sums of money being claimed can prove too tempting, even for otherwise honest people. However, if that were done, defendants would need to be much more careful about interpreting the results of the surveillance. Although people are often upset by the process of being watched, followed, and filmed, I think that they are frequently prepared to accept that as necessary. What they find intolerable, and I agree, is the unjustified attack on their characters which follows.
I can think of many cases in which decent, honest claimants have been filmed. Two recent examples spring to mind. Both claimants were respectable women before the accident, both earning good salaries. They both sustained non-paralysing spinal injuries, both producing complicated symptoms and poor outcomes. In each case the court imposed (wrongly, in my opinion) single joint experts, and in both cases the experts took against the claimant, probably because of the video evidence. The result is that the claimants are faced with the prospect of having to go to trial knowing that they cannot rely on the experts. If they cannot persuade the courts to change the order for single joint experts, they may well have to accept an offer which is lower than they are entitled to expect. Both cases have therefore been complicated by video surveillance evidence, purportedly showing either that the claimants are dishonest, or that they are less disabled than they think. Both claimants maintain their assertion that they are honest, and that they really are as disabled as they say.
I would be more sympathetic to a costs order against a defendant if it could be shown that he had behaved badly in the use of the video evidence which he had obtained, rather than penalising him for trying hard, in difficult circumstances, to demonstrate a claimant's dishonesty.
One good example is the withholding of the videos until the last minute. Sometimes this is simply by concealment (breach of the true rules of discovery, in its old-fashioned sense); sometimes, defendants try to argue that Part 36.3, relating to photographic evidence (the equivalent of the old Order 35), justifies refusal to reveal the videos until a few days before trial. Both approaches would come within my definition of bad behaviour. If the evidence is compelling, the sooner it is considered by the claimant's lawyers, the better for all concerned; the costs are likely to be reduced. If it is misleading, as it often is, the claimant is entitled to as much time as possible to obtain evidence to challenge it. I have just finished a case in which the claimant obtained 47 statements from people who knew him, either to say that he was a thoroughly honest man, or to confirm that he really is disabled, contrary to the impression created by the videos.
I do feel that, now we have many years' experience of video evidence, the ground rules should be well-established. It is obvious that, generally, a video recording is likely to be made when the claimant is out of his home; by definition, that suggests that he is sufficiently well to go out. If he is feeling bad, he is likely to remain at home, and will not be seen by the watchers. How often do the enquiry agents record voluntarily the occasions on which they have watched, but seen nothing. I remember one case in which they had taken 10 days to record 40 minutes of video evidence; however, that fact had to be dragged from them at trial. I always suggest that it is worth asking for old-fashioned discovery (ie discovery of the existence of documents, as distinct from the disclosure of those documents) of all surveillance logs, together with reports and invoices to insurers and solicitors. That is likely to reveal the full extent of the surveillance.
Similarly, it may be important to know what medication is prescribed for the claimant, and to be able to show that there is significant use of it. We all know that suitable pain-killers can sometimes make pain bearable. It may not be surprising, therefore, when a claimant decides that he will go out (they are often encouraged, for example by pain clinics, to do as much as they can), if he takes a good dose of medication to forestall the inevitable pain. Similarly, he may have to recuperate at home for some days if the effort has aggravated the pain (all the more likely if the pain has been reduced by the pain-killers); that will not be recorded on video, of course.
This leads me on to one of the interesting effects of videos. Medical experts seem to have real difficulty in dealing with videos. I have never yet seen, or heard of, such an expert asking for the claimant's account before making up his mind whether the videos show that the claimant has been dishonest. That is, though, the first thing which any good claimants' lawyer would do. In fact, it might be thought to be basic fairness. Far from asking for a claimant's version, many medical experts instructed on behalf of both claimants and defendants simply feel that they can form opinions without investigation or enquiry. Then, possibly because they feel that they have been made to look foolish, they express themselves too vigorously against the claimant. Defence experts are often more knowledgeable about videos, and sometimes know that claimants are being filmed (sometimes on the claimant's visit to the doctor).
A more important failing, in my opinion, is the inability by insurers to see that many hard-working, honest people really are disabled, despite videos showing them engaged in various activities. It always surprises me that insurers, and defence lawyers, seem to think nothing of accusing such claimants of dishonesty, when it should be obvious to the meanest intelligence that they are genuine. Why give up a perfectly good job, which you enjoy, and which gives you status and a good income, on the off chance that a court will award such fantastic compensation that it is worthwhile becoming dishonest? I should have thought that many people, not just those earning high salaries, enjoy their jobs sufficiently to make them prefer to continue working rather than adopting the life of an invalid.
If defendants do feel that such an accusation is appropriate, they must plead it. I am no lover of pleadings in personal injury actions, because usually they seem to be a complete waste of time. However, this is one instance where they are very useful; if a defendant wishes to accuse the claimant of any form of dishonesty (conscious exaggeration is dishonest), he must put his case in writing, so that the claimant may meet it. It is important to force them to do that, because it can drive a defendant into a corner; he cannot wait until trial, and then see which way the wind blows, pretending that he never intended to accuse the claimant of dishonesty if the judge is obviously against him. He must consider his position carefully, and that may make the defence team more cautious about trying to destroy the claimant's reputation.
In litigation involving severe injuries, videos may well have a part to play, because they could be an invaluable guide to the truth, and so to justice. I, personally, doubt therefore whether it is often likely to be appropriate to invoke human rights legislation in an overall attack on such evidence, because I do believe in fairness to both sides. To prohibit insurers from checking the truth of a major claim does not strike me as fair. However, the manner in which they do it, and their interpretation and use of the results need to be scrutinised, so that they are not encroaching too far. It should, perhaps, be remembered that many severely injured claimants are in a fragile mental state (whether because of a brain injury, a psychological or psychiatric reaction, or due to the litigation), and so find the experience of being watched and filmed very distressing. The honest ones also find the attack on their character deeply disturbing, as do I. 25th April 2003
BILL BRAITHWAITE Q.C., who specialises in catastrophic brain and spine injury.
This article appeared in Quantum in Autumn 2003, the bi-monthly service of Kemp & Kemp on The Quantum of Damages
In personal injury cases where the victim is a cyclist, the question of whether a protective helmet was worn at the time of the accident often becomes a critical issue when considering liability. In one recent case Bill Braithwaite QC stood firm in pursuing a claim for a brain-injured cyclist, despite pressure to accept liability on behalf of his client. The outcome was that the claimant will recover 100% of his damages, despite a detailed report from the Royal Society for the Prevention of Accidents, submitted by the defendant.
Brian Williams v Jacqueline Ashley
Brian Williams was born on 1st March 1950 and was 46 when he was seriously injured in a road traffic accident on 7th July 1996. His case came for trial of liability in October 1999 and raised several interesting points relating to the wearing of protective and conspicuous clothing as well as the issue of indemnity costs.
Mr Williams was cycling along a fairly minor country road in North Wales when the defendant drove her car along an even more minor road, up to the junction with the road Mr Williams was on, and drove straight out without stopping, directly in Mr Williams' path. Sadly, when he then collided with the defendant's car, he was thrown over the car onto the road, sustaining extremely severe brain damage. The claimant had no recollecion of the accident, but by the most enormous good fortune there was an independent witness who was able to dispute the defendant's denial of careless driving, coupled with her accusation that the claimant was himself negligent by riding too fast, with his head down and not looking where he was going and failing to see her approaching the junction.
However, the two major allegations of contributory negligence were that the claimant failed to wear a cycle helmet, and failed to wear fluorescent or conspicuous clothing. Each side obtained expert evidence, which was served in the early part of 1999 pursuant to the directions order. The claimant relied on Dr Nigel Mills, who has vast experience in helmets, having been, amongst other things, the chairman of the British Standards Institution committee for motorcycle helmets in January 1994, and a member of the umbrella committee which oversees all helmet committees. He concluded that:
· there is no legal requirement to wear a helmet
· helmets are less effective when a cyclist hits a vehicle than when he simply hits the road, and helmets do not eliminate injury
· serious brain injury is quite common when cyclists are hit a glancing blow by a vehicle, as distinct from a direct collision
· the site of the impact on the right side of the face would not have been protected by a helmet
· the claimant's head injury was due to the right side of his face hitting the road, and a helmet would not have reduced his injuries
· a report in 1994 found that most cyclists do not wear helmets.
The defendant obtained a report from Mr Kevin Clinton, a project manager in the road safety department of the Royal Society for the Prevention of Accidents (RoSPA). His 26 page report, which dealt with the background history in relation to helmets and cycling clothing, appeared to support** the proposition that in 1996 it was negligent not to wear a helmet when cycling, and that it was also negligent to wear inconspicuous clothing.
In June 1999 the defendant's solicitors offered to settle the claim (which is likely to be very substantial) at 80% of full liability, on the basis that the claimant was himself 20% to blame. We rejected the offer, and it was followed by a Part 36 offer in August 1999, that the defendant would accept 90% , the claimant being responsible to the extent of 10%. That offer also was rejected.
As cyclists' helmets and cyclists' clothing are potentially contentious and difficult issues, many people might have been persuaded to settle, particularly bearing in mind the financial pressures on privately paying clients involved in substantial litigation.
Two days before trial, in a skeleton argument which was not received by anyone on the claimant's side until the morning of trial, the defendant abandoned the allegation of failure to wear conspicuous clothing. At 10.25am on the morning of trial, the Judge having expressed the view that he wanted to start promptly at 10.30am, the defendant abandoned the helmet issue.
The Judge (His Honour Judge Rogers QC, sitting as a Deputy High Court Judge) commented that it was not surprising that those allegations should be abandoned. However, the claimant's wife, his litigation friend, was. Like most claimants, who have never before been exposed to the process of civil justice, she had no idea that brinkmanship operated to such an extent in litigation concerning the destruction of a man's life.
In addition to the issue whether it was negligent in 1996 to fail to wear a helmet, there was also a causation point: Dr Mills said that a helmet would not have protected the claimant from the injuries he sustained. The defence argument was that Dr Mills was not qualified to express ***an*** opinion on this point, and that there would need to be a detailed explanation of precisely how the brain injury was caused.
There must be many cases in which cyclists are blamed for failing to wear a helmet, and failing to wear conspicuous clothing, and therefore it may be worthwhile for practitioners to be aware that even a detailed report from RoSPA will not necessarily be sufficient to win the point.
Another point of practice which is also worth noting: ***when we had won the trial on the only remaining issue, namely failure by the claimant to look where he was going, we asked for indemnity costs, because we had responded to the defendant's part 36 offer by writing in reply "by way of counteroffer under Part 36", proposing that the defendants submit to interlocutory judgement. In other words, we felt that the claimant should recover 100% of his damages. The Judge decided that our view was correct; we submitted that he had power to make an award for indemnity costs. The defence argument was that, in order to come within the jurisdiction of rule 36.21 you had to do better than your offer (because the rule starts "This rule applies where at trial - (a) a defendant is held liable for more; or (b) the judgment against a defendant is more advantageous to the claimant, than the proposals contained in a claimant's Part 36 offer")***, and because we had got precisely what we offered to take, we had not done better, and therefore the Judge did not have jurisdiction to award indemnity costs. Although the argument was never put in quite this way, it followed that, if we had offered to accept 99.9% recurring, the Judge did have jurisdiction, but because we asked for 100%, the Court was powerless. The Judge rejected that contention. The defendant asked for, but was refused, permission to appeal.
Bill Braithwaite QC, the consultant editor of Kemp & Kemp, who practises from Liverpool, Manchester and London, led Anthony Goff. They were instructed by Richard Jones of Gamlins.
Bill Braithwaite is a specialist in brain and spine injuries. In May this year he featured in a Channel 4 documentary which examined the tactics used by insurers, and their defence teams, to delay or minimise payments to claimants in PI and med neg cases.
For further information please contact Vicki Baxter on 01625 617611.
Every year, all round the country, dozens of young people, mostly young men, take one dive too many. Some, but by no means all, have been drinking. As like as not, they have all done that type of dive in that type of water many times before, but the dive in question turns out to be disastrous; they break their necks.
What may make it worse is that it can be extraordinarily difficult to win a claim for compensation. This article is intended to explain some of the difficulties; however, it should be remembered that a problem is only a solution in disguise, and the real objective is to give encouragement to those who have suffered this devastating injury. There is an interesting case study at the end.
THE NATURE OF THE WATER
Damaging dives take place into all sorts of water; swimming pools (with or without water slides), indoor and outdoor leisure facilities, lakes, meres, old quarries and workings, rivers, canals and the sea. All these different types of water can occur both in the UK and abroad.
It is important that a distinction should be made between the different types of water, between the UK and abroad, and between different foreign countries. By way of example, swimming pools are likely to be managed much more closely than inland water, and supervision is probably arranged as a matter of course. On the other hand, inland water varies enormously; from rivers running through private property, to more public, and publicly owned, water, to leisure sites with water which are designed for, and freely available to, the public.
THE NATURE OF THE DIVE
Dives can be of many different types. First, the position of the person who dives can vary significantly; from high above the surface of the water to standing in the water up to knees or thighs. Secondly, the diver can have his arms forward or back, the latter being more uncommon and more "adventurous". The angle varies enormously.
One feature of real importance is the "freeboard", which is the distance between the feet of the diver and the surface of the water. Obviously, the greater it is, the more force is likely to be generated. Equally, the depth of water is important because the water reduces those forces, and allows the diver to change the angle of his dive; even if he entered the water at a steep angle, he has time to bring his head up towards the surface, and so make the angle of the dive shallower.
A more common problem area nowadays is the water slide; because they are lubricated with water, to reduce friction and increase speed, they can create fast entries into the water. That might be safe provided the person travels feet first, but can become catastrophic if they go head first. Good supervision would prevent the latter.
The clarity of the water varies considerably, and is relevant when considering the nature of the dive.
Alcohol is a recurring theme. Sadly, it can cloud the judgment, and lead to people doing things which they would otherwise avoid. It certainly will not excuse actions which would be considered unwise if done when sober, but it might not make matters much worse for a claimant (unless it is extreme).
TRESPASSERS
The Occupiers Liability Act 1957 applies to all people who are not considered by the law to be trespassers. It provides that
s2(2) the occupier owes a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there
s2(4) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
In many diving cases, however, the defendant argues that the claimant was a trespasser, either on the land itself or, if he was allowed onto the land but there are "No Swimming" signs, in the water. The question of whether a person is a trespasser is important because trespassers are governed by the Occupiers Liability Act 1984, and the common perception is that the 1984 Act imposes a lower standard of care, namely
s1(4) such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises, provided that (1) the occupier knows of, or has reasonable grounds to believe, the existence of the danger on his land, (2) he knows, or has reasonable grounds to believe, that the trespasser is in the vicinity of the danger, or is likely to come into it, and (3) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer some protection.
There is no doubt that the 1984 Act does impose a different duty, but it may be arguable that the duty could be the same as the earlier Act in certain, limited circumstances.
GUIDANCEIn the UK there are various codes of practice, covering safety at inland water sites, diving in swimming pools, indoor swimming pools, management of safety in swimming pools, beaches and slides. Also, there are other areas of research; for example, building regulations, design guidance for architects (eg tiling, signs, depth markings, depth change lines), the use of chemical agents, and guidance from The Institute of Sport and Recreational Management. There may be similar areas for legal research in relation to an accident which happened abroad, although one has to be very careful to ensure that the foreign opinions and advice on such topics are checked thoroughly; I had a case recently in which the foreign legal opinion obtained by the defence did not appear to be accurate.
EVIDENCE
Obviously, the precise area of the dive can be crucial. As soon as possible, the claimant should go back to the site (if he can face the additional trauma) and take as much time as is necessary to point out where he dived, together with all identifying markers and points, remembering that in some cases the level of the water will change substantially, which may make it more difficult to pinpoint the spot. If the claimant does not feel able to visit the site, an alternative method must be adopted; photos may do, or a plan, or a combination.
It is likely that the claimant will not have been on his own at the time of the dive, and his friends should all be asked to identify the spot. Again, this should be done as soon as possible.
If it is thought that the claimant hit his head on an obstruction underwater, then it may well be necessary to arrange an underwater survey. If complaint is made about the cost, it is important to note that the burden of proof on this point is on the claimant.
The history of the site may be of crucial importance. The starting point is probably to see if there have been previous accidents at that site, but there is so much more to be discovered in many cases. Starting with previous accidents, local residents may be productive, although it is worth remembering that they may not want to help if this site has been a source of annoyance to them over the years, or if they are out of sympathy with the notion that someone should sue for
what they may think was his own fault. This is a commonly prevailing view; anyone who dives into water and breaks his neck has only himself to blame. I think it overlooks that all young people, and many older ones, dive into water which is not technically deep enough, and almost all of them avoid catastrophic injury by mere chance. Adverts in the local press may help.
If the site is a managed one, such as a swimming pool or a leisure facility, there should be extensive documents dealing with all aspects of how it has been run; staffing levels, use of chemicals, repairs, inspections, complaints, accidents, risk assessments, and other information.
Plans, photos and videos may all be necessary.
Another important aspect of the evidence is the selection of an appropriate expert. As so often in these major claims, the selection of the experts can be decisive to the result.
It may be valuable to explore other similar facilities, in order to see how they are managed; a good expert will consider this, and may well have experience of other sites.
METHODS OF PREVENTION
It is important to take great care when formulating the type of prevention which it is alleged should have been adopted by the owner/occupier. As Darby v National Trust shows, if one particular method is selected, it may be difficult to persuade a sceptical court that the defendant is liable.
Complaints about the absence of adequate signs are unlikely to be sufficient on their own to prevail - as was demonstrated so clearly in Staples. The claimant in that case confirmed that he did not need a sign to tell him what was obvious. The lack of signs may be more significant if there is a particular problem with the water in question, which would not be obvious to the visitor or trespasser; perhaps an exceptionally steeply shelving floor concealed by murky water would be a good example, or possibly great depth leading to dangerously cold water. It was the history of the site which was so important in Tomlinson.
THE MEDICAL ASPECT
It may be important to know the precise mechanics of the injury to the cervical spine. There can be a significant difference between a wedge fracture, a burst fracture, a compression fracture and a fracture/dislocation, because the different injuries may indicate what sort of forces were involved, and that in turn may be indicative of the nature of the dive. Injuries to the 5th and 6th cervical vertebrae are most common
GENERAL
Every case is different. Even if there appear to be strong similarities, claimants' lawyers must make quite sure that they have explored every avenue of investigation and argument. I think that the early creation of a good team of solicitor, barrister and expert is likely to produce the best possible result.
DECIDED CASES
There are many cases on the issue of swimming and diving, and some peripheral ones which are indirectly relevant. The most recent is Tomlinson v Congleton Borough Council, decided by the Court of Appeal on the 14th March 2002.
John Tomlinson was 18 when he broke his neck diving into the lake at Brereton Heath Park, near Congleton in Cheshire. He brought a claim against the owners and occupiers, Congleton Borough Council, and against the managers of the site, Cheshire County Council. His case came on for trial in March 2001 before Mr Justice Jack, only a week after Darby v National Trust [2001] P.I.Q.R. P27 was reported in The Times. The judge dismissed his claim, effectively relying on Darby, bolstered up by Ratcliff v McConnell [1999] 1 W.L.R. 670. We appealed, arguing that, although a superficial reading of Darby seemed to prevent the Claimant from recovering, that was not a correct analysis of the true legal position under the Occupiers Liability Act. We won, by two to one in the Court of Appeal. This decision may be of fundamental importance, because it might stop the tide turning further against people who are injured catastrophically by doing things which can be categorised as "foolish" or "rash".
The accident happened in a lake which had been a sand quarry, 40 feet deep at its deepest. It is an extremely popular venue, being managed as a tourist attraction for up to 160,000 visitors a year. There were signs prohibiting swimming because of dangerous water, but they had little or no effect. A scheme had been developed to landscape and plant the sandy shores with reeds and shrubs, in order to prevent people from swimming, but the modest cost of doing that was too much for the local authority.
The Court of Appeal reviewed the authorities of Staples v West Dorset District Council [1995] P.I.Q.R. 439, Whyte v Redland Aggregates Ltd (unreported, 27th November 1997), Ratcliff v McConnell [1999] 1 W.L.R. 670, Bartrum v Hepworth Minerals & Chemicals Ltd (unreported, 29th October 1999) and Darby v National Trust, Scott v Associated British Ports (unreported, 22nd November 2000, Jebson v Ministry of Defence [2000] 1 W.L.R. 2055, and Jolley v Sutton London Borough Council [2000] 1 W.L.R. 1082. They then traced the development of the law from Addie v Dumbreck [1929] A.C. 358, through Herrington v British Rail [1972] A.C. 877, including the Law Commission's report in 1976.
The Court of Appeal rejected the argument that the Claimant had voluntarily accepted the risk.
It may be worth noting for the future that Lord Justice Ward expressed a reservation whether the signs saying "No swimming - dangerous water" turned an otherwise lawful visitor into a trespasser.
I should like to acknowledge the help given to me by Tom Sanders in the preparation of this article. He was employed by the Royal Society for the Prevention of Accidents for many years, and is now an independent expert specialising in diving accidents, having appeared in many of the lead cases.
BILL BRAITHWAITE Q.C. practises from Liverpool, Manchester and London, specialising in claimants' brain and spine injuries.
This article first appeared in the Solicitors Journal.
Care is usually the largest component of a catastrophic injury claim, and it is frequently the hardest fought by defendants. Unfortunately, claimants lawyers sometimes undervalue care, probably because we have become brainwashed into believing that those who give such care should only receive a low hourly rate for a minimum number of hours. I have thought for years that our current approach is wrong, and I wrote at length on this topic in my recent book (Brain and Spine Injuries - The Fight for Justice) which was published last autumn. I was therefore delighted to read the judgment of the Court of Appeal in Evans v Pontypridd Roofing Ltd, delivered on the 9th November 2001 (in which, sadly, I did not appear).
The claimant, who was 34 at the date of the trial, was injured in 1995, so severely that his life was "devastated". He required 24 hour care, including "a chat at night" with his wife. Past care was valued at a little over £100,000, but the trial judge then reduced that figure by 25% to take account of the fact that the care had been given by the claimant's "devoted wife". The judge made the same deduction from lifetime future care.
The defendants appealed, arguing that the deduction should have been one third, not merely a quarter, and suggesting also that the assessment of care needs should be limited to "additional physical services" required by the claimant's medical condition. The claimant's care expert gave evidence that Mrs Evans's services "went well beyond that which a paid carer would provide". Her rates made no allowance for enhanced pay for unsocial hours.
The Court of Appeal said that they should avoid putting first instance judges into too restrictive a straight-jacket, because circumstances vary enormously. They repeated the guidance that, if the caring relation has given up paid employment in order to care for the claimant, the loss of earnings may be the appropriate recompense. Subject to that, regard may (my emphasis) be had to what it would cost to provide the services on the open market, although adjustments probably will need to be made. Lord Justice May said that, because "such adjustments are no more than an element in a single assessment, it would not be appropriate to bind first instance judges to a conventional formalised calculation .... it may well also be appropriate to scale them down. But I do not think that this can be done by means of a conventional percentage ....". He added that there is no scientific basis for a strictly mathematical answer to the question, but that the assessment has to be a broad one to achieve a fair result, and that first instance judges should have a latitude to achieve a fair result. He specifically referred to the normal explanation given by judges for discounting, namely that the family carer does not pay tax and national insurance on the award of damages, and added that there may be particular cases where other elements can properly be reflected by a greater or lesser discount. Incidentally, there presumably will be some cases where the family carer would have to pay tax and NI on future care?
Contrary to the Housecroft v Burnett approach, I have always felt that the starting point should be that family carers ought to be paid more than professionals. They give up jobs, they have their lives disrupted without any consideration or compensation by the legal system, they see their loved ones struggling against disability and handicap, and we then insult them by paying a pittance for care which usually goes far beyond what is provided by professionals.
It is often interesting to consider what care the claimant would require if he or she did not have family or friends to help. In other words, if this claimant were alone in the world, what care would he need. The answer can be very revealing, because it highlights just how important family care usually is. For example, if the wife of the injured man were to leave him, or become unable to carry out the necessary care, what level of replacement would be necessary? Very often, in those circumstances 24 hour care is the only reasonable alternative.
Claimants' lawyers have to be on their guard against "experts" who use either the Barthel Index (modified or not) or the Roper Logan Tierney model to evaluate a claimant's care requirement. Both these methods involve timing or assessing each event in the life of the injured person in what I consider to be an unrealistic way for this purpose. For example, the assessment might be of toiletting abilities; can the injured person wash himself, clean his teeth, shave and deal with evacuation. Bathing is the easiest example; it may be that the claimant only needs someone with him for a minute as he gets in the bath, and ditto when he gets out, which may lead the expert to assess his care requirement as minimal. That can be misleading, however, because the reality probably is that, if there was not someone in the house, available at all times, the claimant would not have a bath.
That supervisory element is often difficult to evaluate, and sometimes it is difficult to perceive. The water is muddied further by the problem which arises in relation, particularly, to married people. If the wife is merely staying at home to look after her injured husband, should she be compensated for every hour she spends at home? The argument in favour is that, if she was not available, 24 hour supervision would be necessary; this point is often made adequately by asking whether she ever leaves her husband alone. On the other hand, if it is "only" supervision which is needed, the wife can be getting on with all sorts of other jobs at the same time as she is supervising her injured husband. I suppose an extreme example, which I have not yet encountered, would be a wife who was able to work from home, earning the same as she did before the accident, at the same time as she looked after her husband. In those circumstances, she would not have to alter her life at all in order to provide the supervision.
The fact that I have never come across that scenario suggests that it is very rare. Much more commonly, the need for care and supervision of the injured person dominates the lives of all around him or her. A good example is Hogg v Doyle, Kemp 5-024, in which the wife (who was a nurse) gave care equivalent to two nurses (but was compensated only for one and a half times the cost of such care) (note that the Court of Appeal said in Fitzgerald v Ford [1996] P.I.Q.R. Q72 that Hogg depended on its own very special facts) . Another example, in which I appeared some years ago, was Lamey v Lamey, Kemp 5-024; Mr Justice Morland emphasised that the qualitative aspect of the care was important, not merely the number of hours given.
A significant point for practitioners may be that Evans demonstrates that judges should not use a formula for discounting. Once that has been established as the correct approach, it then becomes important to investigate the nature and extent of the care in each case, and to obtain good evidence whenever it seems that the family has provided more (either in quantity or quality) than a professional would have done. As is so often the case in personal injury litigation, evidence can be very important.
I would suggest that the time has now come when claimants' lawyers should take a more rigorous approach to the presentation of the care claim. All sorts of different methods have been tried in the past; for example, diaries are commonly requested by the lawyers, but these have two disadvantages. First, they tend to do the very thing which the Barthel Index and the Roper Logan Tierney model do, namely minimise the amount of care by concentrating on the precise minutes required for each function of the day. Secondly, they can be too intrusive for the family, and we should not allow litigation to dominate the lives of the injured person and his or her family.
Perhaps if we concentrated more on how the injured person would have coped, if the family had not been present, we might get a better flavour of the importance of the care which has been given. It might help if that was coupled with a diary kept for a short time only (say one week every six months), which was aimed at the overall importance of family care rather than the nuts and bolts of how many minutes it took to help him into the bath. Of course, as is always the case, good statements are invaluable. Again, the people making those statements, and the lawyers taking or checking them, should be aware of the importance of helping the judge (and the insurers) to perceive the true burden of family care.
Various small points should always be borne in mind.
- •Visits to hospital are always likely to be recoverable, including travel time, and probably for more than one member of the family.
- •If two members of the family are needed for some part of the day (eg lifting, remembering the current regulations on lifting) that should not be overlooked.
- •Family carers should be paid for working unsocial hours.
- •Family carers often carry out tasks which ordinary carers would not do, and which would require higher paid carers.
Most important of all, though, is the notion that the care is not merely intended to permit the injured person to survive; it should be axiomatic for personal injury lawyers to consider care as part of a package of steps which need to be taken to give the claimant as good a quality of life as is reasonably possible. That is likely to involve extensive consideration of the use and management of leisure time. If an injured person can no longer work, and so is "at leisure" all week every week, it is important to fill that time as well as possible. That can be done by pursuing or adapting pre-accident hobbies (snooker, sailing, sport, flying, skiing). If that is not possible, it may be necessary to develop new interests. This may require far more than mere maintenance care, and may also need significant money for equipment or expenses involved in such activities.
When the care claim is investigated in depth in this way, every case may depend on its own very special facts, as the Court of Appeal said that Hogg did. Of course, the whole of the family care problem would be solved if families employed professional care at an early stage, but they rarely do. The reasons are obvious; in the early years it is only natural that families should feel that they are the best carers for their loved ones, and it is equally natural that the injured person should feel at his most secure when his family is looking after him. Although claimants' lawyers should always make it clear to the family that there is an option for professional care, it is not right to try to persuade a family to take a course of action simply to make the presentation of a claim easier. I always tell the injured person and his or her family that they should do what they consider to be appropriate for their lives, and never to do anything simply because it would suit the case. What I find offensive is that families have no choice; their lives may be ruined; their jobs lost for ever; their sanity may be threatened; and yet, out of love and duty, they give their all, only to be minimised and abused by the legal system and the defendants, who are only too happy to take maximum advantage of the claimant's family.6 March 2002
BILL BRAITHWAITE Q.C. specialises in claimants' brain and spine injuries.
This article first appeared in the Association of Personal Injury Lawyers Newsletter
One of the many hazards of being in the British Army is that you may be shot, not by the enemy but by one of your own. That is a moderately common occurrence, and usually the Ministry of Defence accepts liability for the actions of the soldier responsible. However, in a small number of cases there is a worry that the MOD will not be liable because the soldier was acting outside the scope of his employment. There are various examples of why this defence might be raised, one recent one in this country being where the soldier deliberately cocked his rifle, thinking that he was cleverly dropping the magazine so that a bullet did not go "up the spout", and then fired it directly at another soldier. Not surprisingly, he was not as clever as he thought, the gun was loaded, and the other soldier was grievously injured.
A more extreme case was decided in Northern Ireland on 19th May 1999 by Mr Justice Sheil. The plaintiff, an IRA suspect who had never been convicted of a terrorist offence, was attending the funeral of a man who had been killed by his own terrorist bomb (which also killed a number of other people on the Shankill Road). As an Army Land Rover drove past, one of the soldiers in it fired several shots, two of which hit the plaintiff. The soldier concerned was convicted of attempted murder.
At the trial of the action, the soldier did not give evidence, and the Judge had no difficulty in deciding that it was indeed he who had fired the shots. There was an issue as to whether, before he did so, he told the soldiers in the Land Rover "I am going to get them (i.e. the IRA suspects attending the funeral) when we go round next", but the Judge found that he had indeed said that. He therefore decided that the Corporal in charge ought to have disarmed the soldier immediately, and restrained him, and was negligent in failing to do so.
The most interesting part of the case, however, was in relation to the notion that a man who commits attempted murder can be doing so within the course of his ordinary employment. All the usual authorities were quoted, and the Judge concentrated in particular on the phrase (from Salmond) "once it is conceded that the servant was doing something in his working hours, on his employers premises, and that his act had a close connection with the work which he was employed to do, then the onus shifts to the employers to show that the act was one for which they were not responsible". He held that the MOD had not shown that the shooting was one for which they were not responsible.
He then added, and this was a very interesting part of his judgment (it used to be called "obiter dicta", but I do not know its current label!): "Further, I consider that, as a matter of public policy, when the State sends out a soldier or police officer armed with a lethal weapon which he is authorised to use in certain circumstances and that soldier or police officer, while on duty, intentionally or otherwise fires that weapon injuring a third party in circumstances which are not authorised and in which, as in the present case, there is no justification or defence for so doing, the state should be liable in damages at common law for any injury, loss or damage sustained by that third party".
I am indebted to Paul Harrington of Lorimer Longhurst & Lees for letting me have the transcript.
BILL BRAITHWAITE Q.C.
The Plaintiff, whose age was not given in the judgment, was injured in a road accident on the 8th May 1994. He is now a complete tetraplegic at C6 on the right and C5 on the left. His claim for damages came before Mr Justice Eady, and has been something of a cause celebre, being talked about throughout the personal injury world. It was being said, before and during the trial, that the defence lawyers were setting out to demonstrate that this particular Plaintiff, and tetraplegics generally (if there can be such a thing), do not require the levels of compensation which are becoming common. In addition, the rumour was that the defence were obtaining evidence from tetraplegics from various different countries, in order to demonstrate their point. It appears from the judgment that almost every aspect of the claim had some element of dispute, and it is clear that the defence lawyers were seeking to make a general point, which they no doubt hoped would then discourage plaintiffs and their lawyers. If that was their intention, they must be reeling in shock from the disastrous result which they managed to achieve!
Numerous points of significant importance were decided by the Judge, and I set out below what I think are the major matters.
General damages for pain, suffering and loss of amenity were £137,000.00.
Apparently the defence devoted much time during the trial to the question of exploring how many hours were spent by the family, during weekend and other visits, caring for the Plaintiff, as opposed to sitting around chatting or eating, listening to music or watching television, as any family might over a weekend. "Companionship" was contrasted with "care", no doubt with the intention that companionship should not be compensated. The Judge did not accept that distinction.
The Housecroft v Burnett discount, to reflect past care given by family, was put at only 25%.
The Plaintiff's father was compensated for his role as a case manager.
A good deal of work was carried out at the Plaintiff's parents' home to facilitate regular visits from the Plaintiff. This item was disputed as a "matter of principle". The Judge allowed the sum claimed, about £35,000.00, finding that the visits no doubt accounted in part for the fact that the Plaintiff had not suffered unduly from depression.
When using the Ogden Tables, the Judge used only those from Table 11 onwards. When considering life expectancy, on which the experts' views ranged between ages 59 and 65, the Judge decided that the factors which had impressed Mr Brian Gardner and Doctor Hans Frankel, the Plaintiff's experts, were entitled to be given weight, and he concluded that life expectancy was to age 64. He then turned to the Ogden Tables for the starting point multiplier, which he adjusted when dealing with loss of earnings for lost years. He then went on to consider whether the multipliers should be enhanced because of the unusual burden of Netherlands taxation. Having considered the law carefully, he emphasised that the exercise of providing compensation is not an arbitrary one, and should make the best use of such tools as are available, as was emphasised by Lord Hope in Wells v Wells. As part of the same process, he had to decide also whether, once he had made his decisions about the appropriate figures, a computer model, which had been used by the Plaintiff's accountancy expert, could be correspondingly adjusted and multipliers calculated afresh to take account of the unusual burden. The defence objected to that course, on the basis that it would amount to the introduction of new evidence after the Plaintiff's case had closed, but that submission was rejected. The computer model produced a loss of earnings multiplier of 30.37, and a whole life multiplier of 31.14! The Judge said that, if he did not adopt those figures, the fund of compensation would be likely to become exhausted some 10 or 11 years too early.
Turning to loss of earnings, the Judge had extensive evidence about the Plaintiff's likely career choice, and he concluded that he would probably have had a successful career in financial consulting, working with Arthur Andersen. He decided that the Plaintiff probably would have become a partner by the age of 32 or 33 earning £140,000 - £160,000, with equity partnership following after about 5 years. The Defendant's advisors suggested that the chance of the Plaintiff achieving partnership was only 4%, a suggestion which the Judge dismissed as "just unrealistic". The Plaintiff's claim for a net loss of £155,000 a year between the ages of 36 and 65 was described as "very modest", and the Judge said that a fair pattern of gross earnings would be £200,000 between ages 36 and 38, £250,000 from 38 to 40, £300,000 from 40 to 45, £350,000 from 45 - 50 and £400,000 from 50 to 55, at which date he would have retired as a partner or director. However, he would then have had a further 10 years earning the "modest" (for him) sum of £100,000 a year gross. The overall figure for future loss of earnings was therefore £3.7 million, as against the Defendant's estimation (described by the Judge as "simply unreal") of £303,000.
Yet another area of enormous contention related to the Plaintiff's residual earning capacity. There was a hint in the Defendant's Counter-Schedule that the Plaintiff had only a "professed desire to work", although it was not put to the Plaintiff in court that he was malingering or misleading the Court. However, one of the principal contentions of the Defendant, in the context of young men of high intelligence and good education, is that "typically such tetraplegics work and are essentially self-caring". The Judge was "unpersuaded" by the evidence, and emphasised that, even if it were the case, it could only be a background statistic to weigh in testing the specific evidence about "this" tetraplegic. The Judge interpreted, correctly if I may say so, this attack on the Plaintiff's case as involving the submission that he should disbelieve the account which he was being given by the Plaintiff's witnesses, possibly because the Plaintiff had absorbed negative "vibes" from those around him. He regarded that contention as "wholly unrealistic". In fact, the Judge went even further in analysing the true nature of this defence, when he said: "Perhaps it is that the defendant's case is partly founded on the unspoken premise that I am invited to conclude that the assessments of Mr Brian Gardner, Doctor Van As and Doctor Frankel are negligent, incompetent or misguided. I believe that Mr Davies (leading counsel for the Defendant) wishes me to conclude that they are at least misguided: but, if they are failing to meet generally recognised standards in the assessments of the plaintiff and recommendations for the future, that is difficult to distinguish from negligence". There was an incidental attack by the defence on Stoke Mandeville, it being alleged against that hospital that they habitually take an unduly pessimistic view of tetraplegic patients' potential, which often transfers itself to the patients, and leads to significant and unnecessary under-achievement. The Judge rejected that assertion, saying: "I accept that evidence (i.e. the Plaintiff's) in view of their long and distinguished careers, their manifest integrity and their careful and thorough assessment of him as an individual. Their evidence was objective and measured, and I have found it compelling". The Judge concluded that the Plaintiff's residual earning capacity was part-time, 15 - 20 hours a week, up to, but not beyond, the age of 43. He emphasised that this Plaintiff, like all plaintiffs, had to be assessed as an individual, adding that generalisation would be most unwise. It is worthy of notice that the defence team asserted in the Counter-Schedule that the Plaintiff's pre-accident career goals were "well within the range of realistic vocational options for an individual with spinal cord injury". One of the Defence doctors asserted that financial consultancy represented an occupation "which would be little hindered by his disability", adding that "the freedom of the job provides the opportunity to be flexible in location and working hours": the Judge found that evidence incomprehensible. One of the main defence experts, Robert Taylor (himself a tetraplegic who gives evidence about care and equipment), was going to give evidence that the Plaintiff "should concentrate on his ability to continue his pre-injury lifestyle and expectations", but apparently he did not pursue that line when he gave evidence.
Maggie Sargent described the care package needed by the Plaintiff, and was opposed by Robert Taylor. The Judge commented on Mrs Sargent`s direct involvement in nursing patients with spinal injury, and her much greater experience in putting together care packages. He described her assessment as "prudent and reasonable", and was guided by her evidence rather than that of Robert Taylor. One of the points pursued vigorously by the defence was that there would be times virtually every day when the services of the carer would be dispensed with by the Plaintiff, because he might prefer to have necessary tasks carried out by his girlfriend, parents or friends. The Judge rejected that argument, saying that he would not be fulfilling his responsibility to the Plaintiff by assuming that he had a right to the services of his girlfriend.
Accommodation was yet another issue: the Defendant's contention was that the Plaintiff's current accommodation was acceptable and appropriate, which the Judge said would "not bear close scrutiny".
Turning to equipment, the Defence expert (Professor Stover) said that he had never seen anything like the Plaintiff's Schedule before, and that the approach set out in the Schedule appeared to be an attempt to provide the Plaintiff with a universe of needs or wants which increase settlement costs, but do not give consideration to what is in the best long-term interest for him. The Judge found that that suggestion contained the implication that the Plaintiff's claim was lawyer-driven, and unsupported by medical or other professional advice. He commented that Professor Stover had little or no experience of litigation in this jurisdiction and rejected his argument. In addition, the defence mounted a concerted and vigorous attack on Bart Hellyer, the Plaintiff's equipment expert (Bart is a qualified solicitor also). He was cross-examined as to his "philosophy", and it was put to him that he "simply throws everything in (churned out of a word processor) whether the particular claimant needs it or not": the Judge found that he was a "fair-minded witness who was ready to make concessions", and that he was helpful both in writing and orally.
Many smaller elements of the claim, which are often canvassed in these cases, went in favour of the Plaintiff: for example, the importance of regular exercise was emphasised, the choice of a bath or shower was affirmed, air conditioning was allowed, major adaptations to the parents' home were held to be necessary, as were regular MRI scans.
Although the judgment does not give the final figure, the award was apparently in the region of £9 million. A stay has apparently been allowed on £3 million pending appeal.
Everyone interested in this type of claim has been following this case with interest. The defence team obviously targeted the case, intending to create a precedent to discourage plaintiffs generally, and apparently set out to attack both the Plaintiff and his experts. Why they should choose this particular Plaintiff, whose track record was excellent, and why they should select a case in which the experts were of such high calibre, remains a mystery. As so often happens when defendants set out to be difficult, the tactic appears to have re-bounded vigorously, and there are many lessons in this case for plaintiffs' lawyers. First, we should not allow ourselves to be deterred by intimidatory tactics by defendants. Secondly, if a plaintiff's claim is carefully researched and properly presented, it ought to succeed.
Finally, I have to say that the judgment of Mr Justice Eady is one of the best I have ever read in a personal injury action at first instance, and in my opinion all practitioners at this level of work should read it. Of course I would say that, being a plaintiffs' advocate! I only wish I had been in the case. 23rd February 1999
BILL BRAITHWAITE Q.C.
THE LAW
Mental capacity is a legal concept, meaning, in personal injury litigation, the ability to manage one's own affairs.
There is a legal presumption that a person has capacity to manage his own affairs unless the contrary is shown: this is the presumption of competence.
Whether an individual has or has not the mental capacity to perform an act is a question for the court, not for doctors, lawyers, social workers, other professionals or the family, although it may be, and probably will be, relevant to place their evidence before a court.
Once it has been proved that a person does not have the mental capacity to manage his own affairs, this is presumed to continue until the contrary is proved: this is the presumption of continuance.
Lucid intervals: a person's mental capacity can fluctuate, so that he can on occasion have a lucid interval, during which an act may be valid.
Before the jurisdiction of the Court of Protection can be invoked, two things must be proved:
- that the person is suffering from mental disorder, and
- that, by reason of that mental disorder, he is incapable of managing and administering his property and affairs.
"Mental disorder" is defined in section 1(2) of the Mental Health Act 1983 as: "Mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind". It seems to be commonly accepted that "any other disorder or disability of mind" can include disorders arising from a traumatic brain injury. Section 1(3) of the Act states that people must not be regarded as suffering from mental disorder by reason only of (a) promiscuity or other immoral conduct, or (b) sexual deviancy or dependence on alcohol or drugs. "Mental illness" is not defined in the Act. "Property and affairs" means business matters, legal transactions, and other dealings of a similar kind, but it does not include life decisions such as where to live or whether to undergo medical treatment.
If a person is incapable, by reason of mental disorder, of managing and administering his property and affairs, legal proceedings can only be conducted in his name and on his behalf by either a "next friend" (where the person without capacity is bringing the proceedings), or a "guardian ad litem" (where the person is defending the proceedings). The test is the same as for the Court of Protection, although it should be emphasised that a person involved in litigation does not have to become subject to the jurisdiction of the Court of Protection unless and until money is recovered for him within that litigation.
In general terms, the burden of proof is on the person making the assertion (either that someone is a patient, or that he is no longer a patient), although this may not be quite so straightforward where a plaintiff's legal or medical advisers are considering the issue.
The standard of proof is the civil standard, namely that the assertion must be established on the balance of probabilities.
THE DECISION-MAKING PROCESS
The decision whether a person is a patient may involve three steps, namely
- Is he incapable of managing his financial affairs? This is an issue which may not require medical evidence (although there does not seem to be clear guidance on this point)
- Does he have a mental disorder? Medical evidence is required.
- Is the incapacity caused by the mental disorder? Medical evidence is required.
THE LEGAL APPROACH
The lawyer must make an initial assessment whether it is, or may be, appropriate to consider whether his client may not have mental capacity: he does not have to come to a firm or concluded view himself. If he decides that an enquiry is necessary, he will then have to select a suitable doctor to perform the task. He must
- discuss the problem with the client and his family (this can be difficult and embarrassing, but is essential), and
- provide the doctor with all information which is, or may be, relevant, and
- tell him the law (by providing the type of summary contained in this document).
THE MEDICAL APPROACH
A doctor must assess a person's capacity in relation to whatever activity is being considered. The understanding (legal capacity) required for each activity will depend on its complexity.
Assessment requires a knowledge of the person, including his or her cultural values and social situation.
Assessment of whether a person has capacity to manage his or her financial affairs depends in part on the size and complexity of the assets involved, and therefore this information is relevant to the assessing doctor. When asked to give an opinion about a person's mental capacity, the doctor (or other person asked) should always enquire specifically about what act is being contemplated, and the nature of the property and affairs, if the question is whether the patient is capable of managing them. The type and complexity of the property and affairs is very relevant. The assessing person will need to know the value of the person's home, financial needs and responsibilities, any foreseeable changes in circumstances either financial or otherwise, the elements of skill needed to manage the property and affairs, and whether the person would be likely to seek, understand and act on appropriate advice, although this latter information must be treated cautiously: many people who are not "patients" do not act on sensible advice.
A person's psychiatric history is likely to be relevant to the question of mental capacity.
Relevant personal information might include age, life expectancy, psychiatric history, prospects of recovery or deterioration and, possibly, the amount of support available to the person. Before undertaking an assessment of mental capacity, a doctor should seek access to all relevant medical and psychiatric records. Information from friends, relatives or carers could be of importance, although it must be borne in mind that such people might have a particular interest in the assessment of mental capacity. It is important to take account of the person's previous patterns of behaviour, values and goals, because they may give guidance as to whether current behaviour and thinking reflects an abnormal mental state, or a particular cultural or ethnic background. It may be necessary for a doctor to seek advice from others about cultural or ethnic issues.
It may be necessary or appropriate to seek views from those who have professional or personal knowledge of the individual and his or her circumstances.
It is not the decision itself, but the thought process which lies behind it, which is relevant to the question of mental capacity. An assessment of capacity is not intended to be a general assessment of a client's mental condition. Doctors must remember to dissociate society's view of what would benefit the patient from a decision as to what the patient is capable of deciding and choosing, particularly if that choice would appear to be harmful either to the patient or to others.
The assessing person will need to consider the extent to which the patient may be vulnerable to exploitation.
Assessments of capacity may need to be reviewed regularly.
It may be appropriate for more than one doctor to carry out the assessment: for example, a GP with personal knowledge of a person may want to invite another doctor with particular expertise to become involved (NB personal knowledge must not be allowed to intrude inappropriately).
An assessment by a clinical psychologist or neuropsychologist may be relevant, as may be reports from caring professionals who have frequent contact with the person (eg nurses or social workers).
It is the duty of the assessing doctor to maximise or enhance a person's mental capacity, which may involve any of the following steps:
- Any treatable medical condition which affects capacity should be treated before a final assessment is made.
- If a person's condition is likely to improve, the assessment of capacity should, if possible, be delayed.
- In cases of fluctuating capacity, the assessment should detail best and worst capacity.
- The effect of a mental disability (such as memory loss caused by organic brain injury) might be minimised by training in suitable coping techniques.
- The assessment should be carried out in a place and at a time most suitable for the patient, and probably not in circumstances which might create nervousness or tension (such as hospital, surgery or office).
- The person may be either helped or hindered by having a third person present during the assessment, and should be asked specifically which he would prefer.
- The assessing doctor should establish what the person understands about the decision or decisions which are under consideration.
- Depression can affect mental capacity, and should be diagnosed and treated if present.
- All dealings with the person must be carried out sympathetically, with no irrelevant distraction, and clear explanations of the nature and importance of the process.
THE IMPORTANCE OF GETTING IT RIGHT
It should be remembered at all times by all those involved in the assessment of mental capacity that all individuals have many basic human rights, including the right to make their own decisions, however unreasonable they may seem to be, and those rights must not be removed unless there is clear evidence that, on the balance of probabilities, the person concerned is indeed incapable of managing his property and affairs by reason of mental disorder.
23rd February 1999
BILL BRAITHWAITE Q.C.
In 1983 Richard went into hospital suffering from croup. Tragically, he suffered respiratory failure and sustained anoxic brain damage, which left him almost totally disabled. Liability was admitted at an early stage, and the time came eventually for a round table consultation, at which leading and junior counsel, solicitors and accountants all met to try to settle the action. On the 12th November 1993 Mrs JusticeSmith approved a structured settlement in the terms set out below. The significant feature of this result was that agreement seemed impossible when approached in a conventional manner. Richard was six at the time, and is now 17. The fundamental difference between the parties was in relation to life expectancy: according to the Plaintiff's medical advisers, the expectation was to age 50, whereasthe Defendants' doctors thought that it was no more than eight years from trial. This made a difference in valuations of almost a million pounds, which was an impossibly wide gap to bridge by conventional negotiating methods. However, the defendants were very concerned that every effort should be made to try to make sure that a satisfactory settlement could be achieved in order to guarantee lifetime security for Richard. Accordingly, they abandoned the conventional adversarial approach to the problem, and instead started from the "bottom up", by asking what were Richard's needs, both now and in the future, and could theybe met by a structured settlement.
Of course structured settlements may be perceived by many people now to be old hat, because so much has been written about them over the last few years, but they are still developing, and I think that this was anexcellent example of just how useful they can be. A new bungalow had already been bought with an interim payment (of £227,300), and there was about £70,000 left over to go towards alterations and equipment. That meant that a secure home for life had been achieved, free of mortgage, but of course it has to be maintained, with allowance made for replacement of equipment as necessary. Various other smaller costs had to be considered, but the major item was the care needed for the future: this was claimed at almost £35,000 a year for two full-time resident carers. In the end, the Defendants were able to offer a total of £32,000a year, linked to the Retail Prices Index and guaranteed for five years, to cover all predicted expenses, together with a lump sum of £136,000.
This settlement was made possible by a number of factors. Counsel on both sides were prepared to move away from the adversarial system, and ask themselves whether it really was necessary to go through the processof a trial involving four distinguished consultants putting forward such radically different opinions, particularly when the result could not be guaranteed for either side and yet was of such crucial importance for the Plaintiff. The defence accountants (Frenkel Topping) are extremely knowledgeable, not only about structured settlements themselves, but also in relation to the intricacies of health authority finance and the procedures for implementation. The authority itself is a caring one, recognising its responsibilities and prepared to do whatever it could to achieve comfort and security for the Plaintiff, and itwas represented by a solicitor who encouraged it to adopt that attitude. Lastly, but very far from least, the Plaintiff's parents and their solicitor had not become entrenched in the contest, and so were able to perceive that pursuit of a lump sum of £1.3 million (this being the original claim) might not provide the best possible solution to Richard's needs, particularly when coupled with the very real risk that the award might be substantially less.
It was a privilege to be associated with this caring settlement. These "bottom up" structures are apparently common in America, but certainly not here. My own feeling is that this result provided a far better solution to Richard's needs than a contested trial was likely to do, because there was such a real risk that the judge would feel that he was being given the two extreme ends of the scale and so would compromise somewhere around a life expectancy to age 35. If that had been the result, the conventional award would have been substantially smaller, and so would the eventual structured annual payment. Another very real riskis that, as medical science progresses, people who suffer from injury to the brain will live longer: although this would be a great advance in itself, it could create a catastrophe for someone who lived, say, 25 years longer than had been predicted at trial, and whose financial arrangements had all been made on the basis of a life expectancy to age 50. In this case, that is no longer a worry, because the annual payments will continue, index-linked, for as long as Richard lives, whether to age 50 or 75.
Selection of a suitable care institution
The Plaintiff, who was born on 21st May 1947, was admitted to hospital on 10th June 1992 following a suicide attempt. Notwithstanding supposedly close supervision, she was able to inject herself with an overdose of insulin: she lay in a diabetic coma for about 12 hours and her condition was not noticed until her husband visited, when she was treated as an emergency. She suffered severe brain damage, for which liability was admitted.
A significant dispute in the case arose out of the correct future management of the Plaintiff: on her behalf it was contended that she should be accommodated in a private nursing home, costing £78,000 a year, whereas the health authority argued for a nursing home run by a non-profit making charity funded by the health authority for the area where the Plaintiff lived. It was therefore asserted by the Defendants that the Plaintiff would be looked after by the National Health Service at no cost to either her or them.
The plaintiff had a considerable number of difficulties with her health before the accident, having become profoundly deaf and having suffered from congenital cataracts: in addition, she was diagnosed as suffering from anorexia nervosa. As a result of the overdose of insulin, she is unable to communicate in writing, has virtually no speech, is doubly incontinent, and is hypersensitive to touch causing her to lash out at those who care for her. Three or four people are needed to help her bath, and eating and drinking are very difficult. Dr Derick Wade for the plaintiff and Professor Swash for the defendant agreed that the plaintiff presents a very unusual combination of difficulties, often encountered separately but hardly ever in combination. It was common ground that there is no nursing home or hospital which provides specialist care tailored to the needs of someone like her, and that therefore the choice of a permanent home had to be made from the very few places which could meet most of her needs.
Maggie Sargent, the nursing specialist instructed on behalf of Mrs Cunningham, made a wide-ranging search of homes and institutions in the area, and found only one. She had spoken on the telephone to the matrons or managers of 70 or 80 establishments before deciding that this one was the only candidate. The defendants put forward a general figure of £35,000 a year as being the fixed fee arranged and agreed with the Trust responsible for a particular home, irrespective of condition and need. The judge held that the defendants had seriously underestimated the amount of care Mrs. Cunningham would require (calling one of the defence experts "well intentioned but hopelessly optimistic") and he rejected all the defence experts' evidence which asserted that their choice was preferable to that of the plaintiff. He therefore found that the plaintiff's experts' judgment was correct, and that the plaintiff was acting reasonably in assessing future cost on the basis of that institution.
I have reported this case (in which I did not appear, but I am grateful to Maggie Sargent for supplying me with the transcript) because I felt it highlighted the essential importance of genuinely independent and knowledge experts researching carefully before they make suggestions for the management of a plaintiff's future life. The impression created by the judgment is that Mrs Sargent had done enormous research, and taken very great care to come to a fair and sensible view of what was appropriate.
The Plaintiff was born on the 9th May 1961 and so was 32 at the date of the accident on the 5th February 1994. She was 37 at the time of judgment in May 1998. She was knocked down by a car and sustained a severe brain injury, being in coma for several days and suffering retrograde amnesia of four or five months, and Post Traumatic Amnesia of two to three months. She had been left with moderate intellectual deficit and some personality change, but there is also major physical disability causing difficulty in walking which requires the use of a stick. There is some impairment of sight in one eye, a little slowing of speech, some clumsiness of the hands, general reduction in physical agility, and a diminishing risk of epilepsy. As a result of her residual deficits, she has lost her career in the Civil Aviation Authority, has lost her prospects of marriage, and is socially isolated.
The Deputy Judge awarded the following figures:-
| Pain, suffering and loss of amenity | 65,000 |
| Special Damage | 104,132 |
| Future loss of earnings | 234,160 |
| Future care - key worker | 196,392 |
| Case Manager | 10,574 |
| Holidays - extra cost | 11,847 |
| DIY etc. | 4,125 |
| Extra heating | 2,475 |
| Adaptation of accommodation | 3,332 |
| Occupational Therapy | 660 |
| Aids and appliances | 2,000 |
| TOTAL | 634,637 |
(I did not appear in this case: the transcript was kindly supplied to me by Mrs Maggie Sargent).
BILL BRAITHWAITE Q.C.
What a wonderful victory for these plaintiffs, and for plaintiffs generally, and what a superlative achievement for David Kemp Q.C.!
David Kemp has been arguing for this change in the law for the better part of the last twenty years, doggedly pursuing the logic of allowing plaintiffs to invest their compensation without risk. It cannot have been easy, because his arguments have met with an element of scorn and dismissiveness, from both practitioners and the bench, but he has never been deterred, and he has now been rewarded by recognition in the House of Lords. Taking only two examples, Lord Lloyd said: "There is a sustained criticism of the Court of Appeal's decision in Kemp and Kemp: The Quantum of Damages .... and in David Kemp Q.C.'s article in 1997 L.Q.R..... I have derived much assistance from Mr Kemp's commentary, for which I am grateful.". Lord Steyn said: ".... see Mr Kemp's full and helpful discussion and analysis: Discounting Compensation for Future Loss, (101) 1985 L.Q.R. 556 and (113)1997 L.Q.R. 195; Kemp and Kemp, The Quantum of Damages." That is praise indeed from judges of their intellectual calibre, and it emphasises what I see as a real strength of David's book (which he has been writing for 41 years), namely its ability to analyse the philosophical foundation of aspects of personal injury litigation, in addition to simply giving the answers to practical questions.
I emphasise David's achievement because in my opinion these three cases probably would never have seen the light of day if the multiplier issue had not been highlighted by David, and argued forcefully over the last five years or so by others. Certainly his book was the start of my interest in multipliers - I well remember (with embarrassment, but everyone else was the same) how I would simply use previous cases as guidance in selecting a multiplier, and I accepted blindly the notion that they were limited to 18 whatever the circumstances. It was only when I decided to read Kemp and Kemp volume 1 from cover to cover that my interest was awoken.
Having said all that, what does the decision of the House of Lords mean in practice?
First, it is a resounding endorsement of the use of the Ogden Tables. In any case, however large or small, where there is an element of calculation of future loss and expense, even if it is only a couple of hundred pounds a year, the tables are to be used: they "should now be regarded as the starting-point, rather than a check" and judges should be slow to depart from them. The third edition of the tables was published earlier this year, and the fourth is expected soon. Those tables were prepared specifically (with the help of the Government Actuary's department) for use by personal injury practitioners, and they are extremely easy to use. Naturally they are in Kemp and Kemp (chapter 8): they are also in Facts and Figures (published by Sweet & Maxwell, and prepared by the Professional Negligence Bar Association). Doubtless they are elsewhere as well. Practitioners may care to remember that, five years ago when I started writing and lecturing about multipliers, the use of the Ogden Tables was a hotly contested issue, and some defence practitioners would refuse to agree them, so that we had to call John Prevett, the actuary who wrote them (to whom I am grateful: he is a partner of my brother, and helped me to understand the principles).
The current tables are suitable for all cases in which life expectancy is unimpaired, and all that has to be done is to select the appropriate table (for example, male or female, for life or for working life (the latter to age 60 or 65), and so on. The House of Lords has decided that, at the moment, we should use a "discount rate" of 3%, as distinct from the 4.5% which we have all been forced to use since Lord Diplock's judgment in 1971 in Mallett v McGonagle. It is important to understand the principle involved in the discount rate, and it is easy to demonstrate it by reference to a female plaintiff aged 16 who needs a care package for life (unimpaired life expectancy) costing £100,000 a year. In his award the judge will allocate a lump sum to future care, and the plaintiff is supposed to manage that money so that it yields £100,000 a year, every year, for the rest of her life, and is exhausted when she dies. Of course there will be cases where the plaintiff dies sooner or later than the average, but the tables are calculated on the average, and it is fair to use the average if life expectancy is unimpaired. Whether a plaintiff achieves the objective of £100,000 a year for the rest of his life will depend on how he manages his money, and this is where the debate has been over the last few years. Insurers have always said that plaintiffs should not be in a different position from the public at large, and therefore should invest their money in the same way as the investing public (whoever they may be). The Court of Appeal, in these three cases, agreed that plaintiffs should invest their compensation in the same way as the "ordinary investor", which they assumed to mean investment in shares as distinct from something safer. They made that decision even though they knew that there is some evidence from the Law Commission that plaintiffs tend not to invest in shares. It is agreed on all sides that investment in shares will produce a higher investment income than something more cautious, but of course the risk is increased. In 1981 a new investment appeared, namely Index-Linked Government Securities (I.L.G.S.), which is risk-free: they are issued by the government, and are linked to inflation. Of course, being risk-free, they give a lower yield than shares: 3% compared to an assumed 4.5%. Judges have always assumed that plaintiffs would invest so that they achieved 4.5%, which has meant that they needed a smaller lump sum to start with. The House of Lords has now changed that assumption, so that plaintiffs are entitled to be cautious with their money.
Going back to the young woman of 16 who needs £100,000 a year for care, the effect of using a discount rate of 3% is to add about £650,000 to the claim.
It is important to realise that there are limitations on the use of the Ogden Tables. If the effect of the injury is to shorten the plaintiff's life expectancy, or if the plaintiff's life expectancy is shortened by an unrelated condition, it will not be appropriate to use the tables, because they are based on unimpaired lives. There are other tables and approaches which can be used instead.
Going back to where I started, I think that history will tell us that this decision of the House of Lords is one of the most significant revolutions in personal injury litigation this century, ranking alongside, for example, the abolition of the doctrine of common employment (if a fellow employee was negligent, you could not recover), and the rule that contributory negligence barred your claim. I am proud to have been associated with it, and with David Kemp Q.C..
BILL BRAITHWAITE Q.C.
The Plaintiff, aged 62 at trial (judgment given on 8th December 1997) was injured on 8th October 1993. He sustained widespread cerebral damage, with focal damage to the left temporal lobe, with various fractures and soft tissue injuries. He was treated in hospital for several months, and then transferred to Rivermead Rehabilitation Centre in Oxford, under the care of Dr Derick Wade, although that placement did not prove suitable due to the Plaintiff's difficult behaviour. He was then moved, on the advice of Dr Wade and Mrs Maggie Sargent, the well-known care expert, to a private nursing home where he occupies a large double room. His case management was undertaken by Jo Clark-Wilson, of Head First, and the judge found that, in general terms, the current regime of care was appropriate. The main care package was challenged by Dr Anthony Roberts and Mrs DeSa (neurologist and nurse) called on behalf of the Defendants, but the judge accepted that the Plaintiff is entitled to be returned to the same quality of life as he enjoyed before the accident, and he "much preferred" the evidence of Dr Wade, Mrs Sargent and Miss Clark-Wilson to that of the Defendants. In addition, the judge rejected Dr Roberts's assertion that the Plaintiff's life expectancy had been reduced. The total award, in round terms, was £1 million, made up as follows:-
| Pain, suffering and loss of amenity | £112,000 | |
| Agreed special damages | £73,275 | |
| Nursing home | £66,606 | |
| Extra care | £89,849 | |
| Case management | £18,000 | |
| Future care in the nursing home | £23,660 x 10 | £236,600 |
| One to one care in addition | £31,923 x 10 | £319,230 |
| Case management | £5,700 x 10 | £57,000 |
| Employer's liability insurance | £340 x 10 | £3,400 |
| Medical treatment | £360 x 10 | £3,600 |
| Family travelling expenses | £17,130 | |
| Future loss of earnings | £21,500 | |
| Extra case management and Court of Protection | ||
| Costs to be calculated | ||
| Total award | £1,000,190 | |
(I did not appear in this case: I am grateful to Mrs Maggie Sargent for supplying the transcript.)
BILL BRAITHWAITE QC
On 10th January 1985 the plaintiff, who was then just over 3 years old, was run over by a car. He sustained severe brain injury, causing left hemi-paresis, reduced left vision, and severe cognitive problems. He is unemployable and incapable of managing his own affairs. Mr. Justice Garland gave judgment on 6th April 1998.
Epilepsy
The plaintiff claimed Provisional Damages because he had a 1.5% chance of developing epilepsy, the population norm being put at 0.5%. The judge refused to make an award, because the risk would continue unaltered for life, the risk of uncontrolled epilepsy was only 0.25% to 0.4%, and the impact of uncontrolled epilepsy on the plaintiff, bearing in mind his accommodation and care package, would be significantly less than it would be on others. He added £5,000 to the figure for pain, suffering and loss of amenity (£115,000).
Care
The plaintiff's life expectancy was full, subject only to the risk that, if he develops epilepsy, there would be a reduction of five years. The main issue between the parties was whether the parents ought reasonably to be expected to fulfil the role of carers after the plaintiff leaves school aged 19, until his mother is 60, when he will be 35. Not surprisingly perhaps, the judge reject the argument saying: "Once Ian leaves school, legally an adult, he is, in my view, entitled to proper provision for his care and quality of life independently of his parents who have already done, and continue to do, so much". He therefore accepted Maggie Sargent's suggested figures almost in their entirety.
Multipliers
It was argued that the multiplier for life should be reduced by 10% based on the supposed reasoning of McCulloch J in Janardan v East Berkshire Health Authority (Kemp A4-109) and on the Court of Appeal in Wells (1997 1 PIQR Q1). The judge refused to adopt that argument, quoting Buxton J in Stephens v Doncaster Health Authority (1996 7 Med LR 357), pointing out that the logic of the Court of Appeal's decision was flawed (my criticism, not his). He refused to reduce the multiplier to reflect the increased risk of epilepsy, saying that it was so small as to be "de minimis".
"Viewing" the Plaintiff
The judge did not see or speak to the Plaintiff, saying that even an informal meeting at Court would take place in very contrived circumstances and that he would be better guided by the assessments made by skilled and experienced professionals.
Total award
The total award, excluding Court of Protection, was £1,431,707, made up as follows:-
| Pain, suffering and loss of amenity | £120,000 |
| Future care | £849,820 |
| Equipment | £54,897 |
| Therapies | £32,897 |
| Transport | £56,426 |
I did not appear in this case: I am grateful to Maggie Sargent for supplying me with the transcript.
BILL BRAITHWAITE QC
The Plaintiff, whose age is not stated in the judgment, was injured in a road traffic accident in December 1988, when the driver of the car in which she was a passenger fell asleep. She was not wearing the seat belt which was fitted in the rear, and so was thrown out when the car crashed, sustaining an extremely severe brain injury.
The first issue with which we are concerned, for the purpose of this illustration of the importance of good selection of witnesses, is contributory negligence in failing to wear a seat belt. Deputy Judge Ian Hunter Q.C., in his judgement given on the 5th November 19979, said:
"Evidence of these matters was given by Dr Rattenbury who was awarded his doctorate from Birmingham University in this subject and has gained substantial experience as a member of the Accident Research Unit at that university. He gave evidence before me. I was most impressed with his evidence; both with the extent of his expertise and with the very balanced way in which he proffered opinions on aspects of the present case .... Dr Rattenbury concluded that the belt was not available to her and I accept that evidence."
Having been presented with sound expert evidence, the judge went on to conclude that the seat belt had been effectively taken out of use when the rear seat was folded down and then re-erected, without the belts being re-positioned, and that therefore the Plaintiff was not negligent in failing to wear it. In addition, he held that the Plaintiff would not have been negligent in failing to wear a rear seat belt, even if it had been available for use, because there was no legal requirement for adults to wear rear seat belts until the 1st July 1991.
His finding in favour of the Plaintiff was based on reliable evidence given by a true, impartial expert. An excellent contrast arose in relation to the evidence about the need for past and future care. The judge said:
"Professor Barnes who gave evidence on her behalf and is Professor of Neurological Rehabilitation at the University of Newcastle (upon Tyne) .... told me that her main and overriding problem relates to an extremely poor recent memory. His view is, and I accept it, that her memory difficulties effectively preclude independent living .... He and Mrs Sargent, who gave evidence for the Plaintiff as to her care needs, were of the same view that she needs a full-time carer .... I was impressed by the evidence of Professor Barnes. I was also impressed with the evidence of Dr Hierons who gave evidence for the Defendant .... he stated that he would defer to Mrs Sargent on this issue .... This part of the case (care) largely turns on the evidence of Mrs Maggie Sargent given on behalf of the Plaintiff and that (of) Miss Tessa Gough for the Defendant. There are major differences between the evidence of these two witnesses .... Mrs Sargent is a Registered General Nurse who has very considerable experience in relation to the care of those suffering from serious head injuries .... She started in this field in the 1980's setting up care regimes for patients of this kind and has very considerable experience in what is needed to make adequate provision for such patients and in the cost of doing so .... I was most impressed by the way she gave evidence. It seemed to me that not only did she know what she was talking about but her views were expressed in a balanced and professional manner .... The Defendant's expert in this area was Miss Tessa Gough. She is also a Registered General Nurse .... She, like Mrs Sargent, is very experienced. For over 20 years she has established and managed nursing agencies in various parts of the United Kingdom. Her evidence was subject to substantial criticism by (counsel) for the Plaintiff and I am bound to say that I believe that some of the criticism which he advanced was well founded. A number of reported cases were cited to me by the two parties. I notice that in at least two of those cases Miss Gough was called to give evidence on behalf of the defendant in those cases and I infer that she is often called as an expert for insurers standing behind the defendant. In the case of Page v. Sheerness Steel Plc [1996] PIQR Q26 at page Q39, where she gave evidence for the defendant, Dyson J. said, having heard her evidence, that he regretted to say that he did not find her at all convincing as a witness and that she had unreasonably minimised the scale of the problem facing the plaintiff's wife and family carer in that case. In my judgment, similar criticisms can be and are properly made about Miss Gough's evidence in the present case. (Counsel for the Plaintiff) submitted that she shifted ground 'substantially and dramatically' during the course of giving evidence. That in my judgment is a justifiable submission .... on the very day that the case opened .... (counsel for the Defendant) indicated to the Court that Miss Gough had produced a report dated 27 October 1997 .... she concluded that the claim for past care should be reduced from 5 hours a day to just 2 hours a day .... For the future she proffered the conclusion that the Plaintiff was likely to remain at home with her mother until she had gained a partner and thereafter if she were to live with a partner (or indeed continue to live with her mother) the need for extra support would be limited to 2 hours a day. This evidence was based on Miss Gough's interpretation of the (Plaintiff's) diaries which in each case she interpreted in a way most favourable to the Defendant. This evidence was not at all consistent with the evidence of Dr Hierons who asserted that at least 6 hours a day of care would be needed .... she changed tack and accepted that more support was needed than had been set out in her Appendix C .... the fact remains that Miss Gough's evidence changed on a number of occasions since she produced her first report and I was left with the distinctly uneasy feeling that she was tacking according to the prevailing wind rather than giving me her best shot at what was properly required for this Plaintiff in terms of care, regardless of the financial cost .... Where the evidence of Miss Gough and Mrs Sargent differs I unhesitatingly prefer that of Mrs Sargent.".
Readers will remember that, in these big cases, care is usually far the largest element of the claim, and therefore it is important to obtain reliable evidence, whichever side you are on, so that you can make a realistic pre-trial assessment of the case, and in order to win if the action is contested to trial. A five day trial, such as this one, could cost up to £100,000, and therefore the penalty for getting care hopelessly wrong is substantial. Even worse, though, is that a plaintiff has to go through the legal mangle in order to achieve her rights.
CONSULTATION ISSUES AND OPTIONS FOR REFORM
In considering reform the Commission wish to attain the following objectives:
- Fair compensation.
- Consistency and uniformity.
- Predictability.
- Comprehensibility.
- Workability and simplicity.
SHOULD DAMAGES FOR NON-PECUNIARY LOSS BE AVAILABLE AT ALL?
Awards of damages for non-pecuniary loss are now well established and their continuance is in keeping with the increased recognition of the significance of mental distress and other intangible interests generally.
SHOULD ENGLISH LAW ADOPT THE CANADIAN 'FUNCTIONAL' APPROACH TO THE ASSESSMENT OF DAMAGES FOR NON-PECUNIARY LOSS?
The commission rejects a change of approach for the following reasons:
- Certain non-pecuniary damages would form part of the pecuniary loss, measurable in the cost of providing substitute pleasures, which places unacceptable evidential burden on plaintiff.
- To assume that substitute pleasures can provide solace to a plaintiff is unrealistic. Still have to make up the loss of capacity to enjoy life that remains.
- Requires the abandonment of tariff approach for non-pecuniary loss. Difficult to determine the reasonableness of what would provide solace.
- Substitute pleasures cannot act as a solace for what has already been endured. Thus, damages in respect of pre-trial non-pecuniary loss would be precluded.
- In Canada, where this approach is used, judges continued apply tariff approach to assessment, leading to inconsistency.
SHOULD A PLAINTIFF WHO IS UNAWARE OF HIS OR HER INJURY BE ENTITLED TO DAMAGES FOR NON-PECUNIARY LOSS?
A permanently unconscious plaintiff is unable to appreciate his or her condition and is therefore unaware of any non-pecuniary loss. Yet, the House of Lords in West v Shepherd said that such a plaintiff should receive a sum representing loss of amenity. Even Diplock LJ, who dissented, was willing to award something for loss of amenity to the unconscious plaintiff. (However, Lord Justice Diplock's view was that, "[C]onsciousness of deprivation is, if not the sole, at least a major causative factor in the unhappiness resulting from a disabling injury..."). The House affirmed this decision in Lim Poh Choo, suggesting that the decision should only be reversed by Parliament.
The Commission takes the view that if the plaintiff is incapable of suffering it is arguable that non-pecuniary loss should be assessed subjectively. Such an approach would result in a nil award for non-pecuniary loss for a permanently unconscious plaintiff. Further, on present medical understanding, the law can take it as a fact that some plaintiffs are, and will remain, permanently unconscious.
A nil award may be said to be perverse, in that it is cheaper to injure someone more seriously than less seriously. However, it is compensation of the plaintiff that is in issue, not punishment of the defendant.
The Commission believes that any remedy for the grief of the plaintiff's dependants should be addressed directly and not disguised through an award to the plaintiff.
SHOULD THERE BE A THRESHOLD FOR THE RECOVERY OF DAMAGES FOR NON-PECUNIARY LOSS?
The Pearson Commission recommended that a threshold be introduced and that no damages be recovered in respect of non-pecuniary dating up to three months after injury.
Reasons for imposing a threshold:
- The cost of compensation: Minor injuries are over-compensated, especially for non-pecuniary loss. Research suggests litigation costs for minor injuries are disproportionate to the awards.
- Evidential problems: In minor injuries most loss comprises of pain and suffering (subjective). A threshold for recovery "could ... serve as a demarcation between cases where there is some tangible evidence of injury and cases where there is none."
- Triviality: Minor or transient losses ought to be tolerated not compensated. Reasons against introducing a threshold:
- Litigation costs should be reduced through procedural reforms rather than alteration of common law principles.
- May encourage claimants to exaggerate or prolong their symptoms to ensure that they satisfy the test.
- Some injuries have little or no pecuniary loss - some wrongs go completely unremedied.
- The first three months is the period when pain is most intense, therefore should not be excluded from damages.
WHAT SHOULD BE THE LEVEL OF DAMAGES FOR NON-PECUNIARY LOSS?
Is the present level thought to be too high or too low?
High awards are thought to contribute to high insurance premiums. Other jurisdictions (whose damages are assessed by juries) have imposed judicial and legislative ceilings on awards for non-pecuniary loss.
Some consumer organisations claim that levels of compensation are too low. In 1988, one proposed a Compensation Advisory Board with the power to recommend new (hopefully higher) levels of award. Referred to:-
- views of plaintiffs and public at large.
- arguments of hidden costs in disability, at present not compensated.
- higher levels of compensation in claims for injury to reputation.
The National Consumer Council believes "that levels of damages are too low because those who fix them do not have the expertise to take into consideration all of the factors associated with the loss. Courts rely instead on precedents which were not adequate to begin with and are rarely reviewed. Settlements are influenced by the same inadequate precedents."
HAVE AWARDS FAILED TO KEEP PACE WITH INFLATION?
The Association of Personal Injury Lawyers argues that current awards are lower in real terms than they were 30 years ago. Various injuries were selected to test this claim. For less serious injuries the results were inconsistent. In contrast, awards for very serious injuries appear to have consistently fallen below inflation over the last 25-30 years. Paraplegia
In Walker v John Mclean & Sons the Court of Appeal recognised awards by judges from 1973-1978 were lower in real terms than those made in the 1960's and early 1970's. The court indicated that £35,000 for March 1978 restored parity with earlier sums.
Using the RPI in Kemp and Kemp:
| June 1994 update | £104,165 |
| JSB Guidelines June 1994 | £95,000 (maximum) |
It would appear that awards have fallen slightly behind the inflationary rate since 1978. However, the central question is did Walker restore parity with the sums of the 1960s and early 1970s?
Third edition Kemp and Kemp :
| average figure-paraplegia in 1967 | £25,000 |
| March 1967 update | £75,874 |
| June 1994 update | £225,811 |
Before 1970:
No division into pecuniary and non-pecuniary and Kemp may include element for future pecuniary loss. However, in June 1963 a male paraplegic received a sum for non-pecuniary loss due to reduced life expectancy of ten years of £16,500
| March 1978 update | £58,429 |
| June 1994 update | £173,893 |
June 1971, Court of Appeal awarded a sum for non-pecuniary loss to a paraplegic for unusual and serious elements of £20,000
| March 1978 update | £47,411 |
| June 1994 update | £141,102 |
It appears that awards for paraplegia have failed to keep in pace with inflation and are not comparable to late 1960 and early 1970 awards.
Quadriplegia
In Housecroft v Burnett the Court of Appeal was asked to considered awards for quadriplegia in 1983 too low when compared with figures of late 1960s early 1970s. Courts view:-
1969/1970 not a true comparison because included items that now claimed separately as pecuniary loss.
1973/1978 not a true comparison (see reasons in Walker).
Conclusion:-
More recent awards a better guide:
| JSB Guidelines April 1985 | £75,000 |
| June 1994 | £114,502 |
| JSB Guidelines June 1994 | £105,000 to £125,000 |
| This suggests that awards since 1985 have kept up with inflation, but compared with 1960/1970 did Housecroft guideline decrease conventional sum for injury?
Kemp and Kemp: |
|
| Average sum 1967 | £35,000 |
| April 1985 update | £207,072 |
| June 1994 update | £316,136 |
| But for the reasons given in the last section, Kemp and Kemp may not be a proper basis for comparison.
Therefore turn to specific awards (non- pecuniary loss approved by Court of Appeal pre 1973):- |
|
| Feb. 1970 dreadful case high award but not unfair | £25,000 |
| April 1985 update | £131,639 |
| June 1994 update | £200,972 |
| Nov. 1970 young quadriplegic, life expectancy 10 years, | |
| award not excessive | £20,000 |
| April 1985 update | £99,611 |
| June 1994 update | £152,076 |
| In 1961 in Wise v Kaye, Diplock LJ expressed the view that £15,000 to £20,000 was maximum pecuniary award for a fully aware quadriplegic | |
| April 1985 update | £107,950 to £143,933 |
| June 1994 update | £164,806 to £219,742 |
These updated values are significantly higher than Housecroft or JSB Guidelines figures. Ignoring the courts criticism of awards between 1969 and 1970, the guideline figure in Housecroft decreased the conventional sum for this type of injury.
Very severe brain injuryFor very severe brain damage including permanent unconsciousness: |
|
| June 1994 JSB Guidelines | £105,000 to £125,000 |
Wise v Kaye, Feb. 1961, Court of Appeal, a young woman permanently unconscious and completely unaware of surroundings awarded £15,000 |
|
| June 1994 Update | £171,853 |
Wise v Shepherd, May 1962, House of Lords upheld award to woman severely disabled physically and mentally due to brain injury of £17,500 |
|
| June 1994 update | £187,435 |
This is greater than current awards made for this injury as suggested by JSB Guidelines.
In Lim Poh Choo v Camden and Islington AHA, 1980, House of Lords considered cross appeal of award by Bristow J (Dec. 1977) of £20,000 to a woman of 36 who had suffered severe brain damage leaving her sentient but completely dependent on others and unable to appreciate her condition, with a life expectancy substantially the same as prior to the accident. Argued that sum too low as the values of awards in Wise and West updated to Dec. 1977 were £56,722 and £61,865 respectively. Appeal dismissed: Lord Scarman said that an award for pain, suffering and loss of amenities is dependent only in the most general way upon the movement in money values- provided that the sum is substantial in current money values, the updating requirement is met.
| JUNE 1994 UPDATE | £60,595 |
This is approximately half the amount that a plaintiff with similar injuries would expect to receive today. Thus the value is today greater in real terms than that implied by the House of Lords in 1977, but less than that awarded in the 1960s. To this extent the awards for non-pecuniary loss for this serious injury have failed to keep pace with inflation.
Conclusions
Serious injuries: damages for pain suffering and loss of amenity have failed to keep pace with inflation. Lower in real terms than awards in respect of the same injuries 25-30 years ago.
However, comparisons are very rough. Pre-1970 the courts rarely itemised awards for general damages. Any distinctions of non-pecuniary from other losses are so few that they cannot be regarded as truly representative of the going rate. Therefore, sums for non-pecuniary loss in the late 1960s may be misleadingly high. However, if we discount the awards for very serious injuries used above by 15% it would still show that awards from the late 1960s to the early 1970s have failed to keep up with the rate of inflation.
SHOULD ANY FORM OF LEGISLATIVE TARIFF BE INTRODUCED?
Justifications for turning to a legislative tariff can be made with reference to the need for uniformity in awards and for new levels to be set.
Fixed sum
Least discretionary, most certain form of tariff. Once injury categorised no room for reflecting. Fairly mechanical but a process of assessment that is relatively simple, speedy and inexpensive.
Upper and lower limits
This establishes a range for each category. Judge has discretion to select the figure most appropriate to the circumstances, but not permitted to depart from it. Similar to current system except currently this has been established by the judiciary and is more flexible in that they are not regarded as absolutely fixed.
Maximum/minimum sums.
Sets the limit on the non-pecuniary award for the particular category of injury. But judge has discretion to award any sum.
Average sums.
Specifies a single figure for each category. Permits a judicial discretion to make an award above or below the average sum giving the judge generous rein.
Assessment of proposals.
If a legislative tariff were to be introduced the real choice lies between fixed sums and one of upper an lower limits. Only these forms of tariff control and regulate judicial discretion in a way which would justify abandoning the present system. They promote more uniformity and consistency in awards. Yet, we consider a fixed sum tariff unacceptable because they eliminate judicial discretion altogether.
If a legislative tariff were to be introduced, one with upper and lower limits, coupled with a non-exhaustive list of relevant factors affecting the level of award, is favourable. This would give opportunity to reassess the level of award and the relative severity of the injuries. Advice could be widely sought, for example, from medical experts and lay people as well as lawyers. The tariff could be reviewed periodically by an advisory board.
IF A LEGISLATIVE TARIFF IS NOT INTRODUCED, SHOULD THE JUDICIARY BE ASSISTED IN FIXING THE AMOUNTS TO BE AWARDED FOR NON-PECUNIARY LOSS?
A Compensation Advisory Board
The Citizen Action Compensation Campaign believes that general levels of damages for non-pecuniary loss are too low and require more public input. It proposes an independent body composed of specialists in matters effecting injured persons, with a duty to recommend new (higher) levels of compensation.
Arguments against:
- The government is unconvinced that compensation levels should be increased.
- The establishment of a Board may not improve assessment of damages.
- Possible hindrance to the speedy resolution of claims.
- Without a statutory duty increases would not be guaranteed.
- If a Compensatory Advisory Board were to be established:
- It should be chaired by a High Court Judge with experience of personal injury litigation and include representatives of medical and legal professions, bodies providing advice or services to injured or disabled persons, insurers, employers, trade unions and lay persons.
- It should have a duty to recommend levels of damages to the judiciary.
- It should be advisory only. A judge could depart from recommendations for good reasons which must be articulated and subject to review by an appellate court if it has failed to take account of the recommendations.
- Recommendations for awards should not be lower than the current levels, taking into account evidence that awards have failed to keep pace with inflation.
- Should produce a report recommending new levels within one year. Then meet annually for the first two years, thereafter once every three years.
- Automatic annual updating of new levels for inflation, by reference to the RPI.
Guinea-pig jury trials
APIL suggested occasionally cases be tried by jury to provide sample awards for judicial assessment of non-pecuniary loss. Cases be either selected at random or by a judge who would ensure a suitably wide range of cases.
The Commission is strongly opposed to this suggestion. Jury assessment is unpredictable and inconsistent. In Hennell v Ranaboldo, the Court of Appeal held it wrong for a judge to exercise discretion to order jury trial for the purpose of providing an example of the damages a jury would award.
Greater reliance on medical "scores"
With reference to the criminal injuries compensation scheme, the use of a medical model to determine severity of injury has been suggested. Could also be basis of assessment of non-pecuniary loss. Physical and psychological injury would be scored according to recognised medical scoring systems, providing a scientific and rational way of comparing injuries. Medical scores would not assist in fixing the general level of damages, but in rationalising the different amounts awarded for different injuries.
Problems:
Medical scoring systems do not take account of characteristics of plaintiff. Injuries are scored at the time of the injury, therefore, variables in recovery rates and problems associated with particular injuries are not taken into account. Some injuries may be minor in purely medical terms, yet severe in social terms (e.g. disfigurement).
Computerised assistance
Would allow judges to see wide range of information, in a readily usable statistical form.
SHOULD INTEREST BE AWARDED ON DAMAGES FOR NON-PECUNIARY LOSS AND, IF SO, HOW MUCH INTEREST?
The present guideline for non-pecuniary loss is that interest should be awarded on the whole sum at the rate of 2% from the service of the writ until the trial date.
The Commission does not accept that the award of interest on non-pecuniary damages is unfair to defendants. Should interest be awarded only on pre-trial non-pecuniary loss?
It is difficult, although not impossible, to separate non-pecuniary into past and future loss. Some jurisdictions already make this separation (some Australian, and Scotland). However, in these jurisdictions the courts apply a higher rate of interest, running from an earlier date, than in England. Should the date of the service of the writ be the date from which interest is payable?
As loss can be continuing or occur later than the accident, it can be difficult to apply interest from date at which the loss occurred. Is the current 2 per cent rate satisfactory?
The Commission recommends that legislation be introduced requiring the courts to take account of the net rate of return taking index-linked government securities (ILGS) as a comparison.
SHOULD DAMAGES FOR NON-PECUNIARY LOSS SURVIVE THE DEATH OF THE VICTIM?
The Damages (Scotland) Act 1993, now allows damages for non-pecuniary loss to survive for the benefit of the deceased's estate. This brings Scottish law into line with the position in England and Wales.Should the survival of damages for non-pecuniary loss be excluded altogether?
The Commission is not in favour of precluding the survival of damages for non-pecuniary loss. Reasons:-
- Variable effects are unfair to injured persons and families.
- The injured person may be unfairly deprived of his/her entitlement on death.
- Victim may die after injury from unconnected causes.
- Where death is likely, this could cause incentive for defendants to delay settlement.
- Pressure on dying victims to settle quickly, perhaps for less.
- It may exacerbate pre-death suffering.
In particular victims of industrial disease would be disadvantaged by a rule precluding the survival of damages for non-pecuniary loss. Should the survival of non-pecuniary loss be subject to conditions?
It is the Commissions view that such a rule ought not to be introduced.
Pain, suffering and loss of amenity
Female age 23 at accident - severe head injury with brain damage - memory deficit - slurred speech - personality change - left sided paralysis - requires 24hr care - aware of her problems agreed that plaintiff should receive 75% of damages awarded - no loss of life expectancy - multiplier of 18.5
| Pain suffering and loss of amenity | £75,000 |
| Past loss of earnings | £? |
| Past care | £93,707 |
| Accommodation | £63,521 |
| Aids and equipment | £5,250 |
| Travel | £2,600 |
| Holidays | £5,268 |
| Future care | £825,007 |
| Future running costs | £20,498 |
| Future aids and equipment | £29,600 |
| Future transport | £6,234 |
| Future medical care | £7,400 |
| Future holidays | £33,300 |
| 75% | 1,035,245. |
This action arose out of an accident on the 12th November 1989. The plaintiff was a pillion passenger on a motorbike. At the time of the accident the plaintiff was 23, her date of birth being 28th April 1966. Liability was not an issue, it having been agreed that she would receive 75% of damages awarded.
INJURIES SUFFERED
- severe head injury with resultant brain damage
- tracheostomy performed, leaving an unsightly scar
- displaced fracture of the left elbow which was fixed with wires, leaving a scar
- left sided paralysis with restricted movement in her left arm. The plaintiff remained unconscious for 4 weeks. In January 1990 she began weekend visits home. She was transferred to the Young Disabled Unit at Ladywell Hospital on 12th April 1990 and discharged on 8th September 1990. Since then she has lived at her mother's home.
PRESENT COMPLAINTS
The plaintiff's memory deficit means that she is no longer able to organise her own life. Her mobility is restricted by a substantial weakness in her left hand and limbs. Her speech has become slurred and her voice sometimes distorted, meaning she cannot always be easily understood. Although she remains pleasant and cheerful, personality changes make her at times difficult to deal with. She is unable to deal with any crisis. She has suffered some loss of smell and a grossly reduced stereoscopic perception in her eyes.
The plaintiff is fully aware of her problems. Although her condition is stable, there will be no further improvement. She is unable to live independently, requiring 24 hour care.
CARE AND ATTENDANCE
Initial care was provided by the plaintiff's mother, Beryl Walsh. Future care will not be carried out by the mother. The Defendant conceded that at least 2 carers are needed, but for a long period the mother has done this work alone. For past care, the Crossroads scale was thought appropriate. However, 20% was deducted from the commercial rates.
ACCOMMODATION
While the court accepted that some of the building work carried out was unnecessary, it did not consider that such work prolonged the overall work period (over which the plaintiff rented accommodation). The majority of improvements to the accommodation were allowed, including an extension and conservatory. The claim for the conservatory was allowed based on the premise that the plaintiff will need a wheelchair in the future. The conservatory will provide a better quality of life. The door entry system was disallowed. The amount claimed for refurbishment was reduced due to the house being refurbished to a very high standard.
TRAVEL
The court allowed the plaintiff's claims for taxis, hire charges and increased mileage.HOLIDAYS
It was considered reasonable that the plaintiff's mother should accompany her on holiday. It was thought unnecessary that she go to the USA.
FUTURE CARE
The plaintiff's expert's evidence was preferred regarding day care. £6 per hour was adopted as the basic cost. The court thought it impractical to have 2 residential carers, but reasonable that one could do the night care for half the week. 73 hours was adopted in respect of the number of hours needed per week. Half of the night sleeper care would be in exchange for free accommodation. For the remaining 3 1/2 nights the court thought £22 per night to be excessive and allowed £18.50 per night.
£3,460 pa. was allowed for a case manager. This figure represented 44 hours in any one year and reflected the fact that it was thought a manager could be found nearer to home.
MULTIPLIER
A life multiplier of 25.4, based on the Ogden Tables, was argued for: the judge refused to adopt that approach, and used instead the multiplier of 18.5 as suggested by the Defendant.
NOTE
The judge said: "Maggie Sargent (the Plaintiff's care expert) has allowed a rate equivalent to that paid by Social Services whilst for the Defendant Tessa Gough has allowed the Whitley Grade A scale..... I prefer Mrs Sargent's evidence to that of Miss Gough.
(With grateful thanks to Maggie Sargent for supplying the solicitor's note of judgment.)
This case, which was decided by His Honour Judge Young sitting as a Judge of the High Court on 7th March 1997, raised some very interesting points. The Plaintiff, Julia Doyle, was born on 18th October 1969 and so was 19 at the date of the road traffic accident and 27 at trial. She sustained what the Judge described as "moderately severe brain damage", although that probably cannot be correct in the light of the fact that she was unconscious for 3 months (on the face of it, that would suggest an extremely severe brain injury in accordance with the accepted classification). She has significant, residual behavioural and cognitive problems, involving memory, vulnerability, lack of motivation, manipulation, anger and distress, occasional loss of balance, and childlike behaviour. She will always need 24 hour care, and is permanently unemployable. Unfortunately, she has considerable insight into her plight.
The major issue in the case involved the decision as to what was appropriate future care: as the final award was £617,000, it was obviously important that good witnesses were selected. Maggie Sargent was the Plaintiff's expert, and she was supported by Mrs Carmen Welsh, who apparently was involved in the Plaintiff's treatment and management. The Judge said: "I should add that Mr Ryland did not impress me as a witness either as to the facts of this case or as to his opinion. The whole of his approach, in my judgment, was wrong-footed by his failure to note the stress in the home. If he had noted that and noted the extent of the stress I am quite satisfied he would have come to a different view than the one he holds, which is that Mrs Doyle should be the principal carer of her daughter at home until Mrs Doyle reaches 65. I reject that view. For the avoidance of any doubt, I prefer the views, the evidence, the findings and the opinions of Mrs Sargent and Mrs Welsh on any issue as to opinion or to fact where they are at variance with Mr Ryland;....I take the view that with Julia care should now be entrusted to professionals, with an input from Mrs Doyle and her family ....This, in my judgment, is best achieved for Julia by a spell at Banstead Hall, followed by the provision of a suitable home for her with professional care readily at hand and with mother living in accommodation nearby....I base that view specifically on the evidence given by Mrs Sargent and Mrs Welsh, both of whom struck me as being impressive in what they said and what they advised, based on considerable familiarity on a factual basis with the way things are in this family at the moment." (My emphasis)....Having come so clearly to those conclusions, I hope I do not sound dismissive of the views which have been placed before me in the opposite direction. I do not discount the opinion of Dr Richardson lightly.....I still think he is taking a very narrow view of the wider issue of rehabilitation in the full sense. I prefer the outlook, the views and the attitude towards reconciliation adopted by Mrs Sargent and Mrs Welsh. I also note that they are absolutely up-to-date with what goes on at Banstead Hall and he is not. It comes as no surprise that I follow what they are saying, rather than what he says....The other witness who was against it was Mr Ryland, but that carries no weight with me at all.".
Those quoted passages highlight the importance, in substantial personal injury actions, of finding top quality, independent, fair and experienced witnesses, and nothing can demonstrate this point better than the Judge's complete dismissal of the defence care consultant. In my opinion, it really is counter-productive for defendants to select experts who minimise costs to an unacceptable extent. Not only does it offend all those who are genuinely concerned to achieve a fair result for an injured plaintiff, but also it increases costs and antagonism vastly. I think this problem is aggravated by the fact that some defendants appear to think that any plaintiff's expert who estimates that a lot of expensive care is required in the future is automatically a generic "plaintiffs' expert", always exaggerating and over-estimating. My own experience is rather the reverse, and this case is just one of a number in which plaintiffs' experts have been accepted and defendants' experts have been rejected and criticised. Of course I realise that is not the universal result, and each case is different: I would accept the point that, if a plaintiff's advisers select inappropriate experts who are being unrealistically high in their estimations of care, the reverse result ought to follow.
The next point of substantial interest is in relation to the cost of investment advice. This point was argued on the basis that Francis v Bostock (The Times 8.11.85 - discussed at paragraph 5-070/2 of Kemp & Kemp and reported at A2-102 of Kemp) is the preferable authority, to the effect that the cost of investment advice to allow a plaintiff to manage a large award of damages is too remote. However, the conflicting decision is Anderson v Davies (Bell J before his appointment, sitting as a Deputy High Court Judge on 25.9.92), and His Honour Judge Young preferred that reasoning. In addition, though, he highlighted a point of distinction which might be worth considering: where a plaintiff's damages are managed by the Court of Protection, as in Julia Doyle's case, she has no choice whether or not investment advice should be used, because the Court of Protection automatically has the funds managed by investment advisers. The Judge said: "Julia Doyle therefore was deprived of any say in whether damages should go to the Court of Protection and deprived of any say in the disposal of her damages under the administration of that Court. She has therefore been put in the position by the negligence of the defendant of incurring dealing charges without any choice whatsoever.". He drew some support from the decision of the Court of Appeal in Wells v Wells, although he did say: "I recognise that it has not resolved the matter and expressly did not wish to do so, but reading the whole of the judgment it does seem to me that certainly the decision in Anderson v Davies was not criticised, and was to a certain extent supported in the Court of Appeal.".
There are 2 points of importance to be noted: first, the Judge is right that some support can be derived from Wells to support a claim for the cost of investment advice and, secondly, it may be appropriate to emphasise the inevitability of incurring these charges in Court of Protection cases. I must add that, personally, I have always found the case of Francis to be entirely unacceptable: the reasoning seems to me to be faulty, and I doubt very much whether that point, if fully argued, would be decided the same today. Having said that, I have to acknowledge that it has been followed by Otton J in either one or two cases.
Incidentally, a very minor point which had to be resolved by the Judge was that the costs of travelling to specialists for medico-legal reports was properly claimable, and this seems to have been supported in some way by the practice of taxing masters.
The major figures are as follows:
| Pain, suffering & loss of amenity | £90,000 |
| Past lost of earnings | £38,521 |
| Past care | £69,540 |
| Total Past losses | £128,652 |
| Future loss of earnings | £171,615 |
| Future care | £616,753 |
| Banstead Hall | £83,304 |
| Future cost of Mrs Welsh | £168,636 |
| Pension | £16,000 |
| Accommodation | £28,500 |
| Total Award | £1,341,987 |
In relation to multipliers, the Judge said: "These arguments (sic) have been based by looking at the Ogden Tables and then by building in discounts which are those at present allowed in law....". It looks as though he used the Ogden Tables and the contingency discount for earnings in the preface to the tables, rather than adopting the unscientific and illogical approach canvassed in Wells, Thomas and Page. Multipliers of 16 for work and 20 for life were used.
BILL BRAITHWAITE Q.C.
Structured settlements are a method by which damages can be paid by a defendant in a stream of future annual payments, rather than by the traditional lump sum award at trial. What usually happens is that the lawyers come to an agreement about the value of the claim in the usual way, and then start to investigate whether it suits both the plaintiff and the defendant for some or all of the money to be invested in an annuity so that there is a guaranteed income for the life of the plaintiff. Generally, some of the damages are used to buy accommodation and equipment, and the rest is needed for the future expenses of living, including additional care, therapies and normal household expenses. The system is quite flexible, in that the plaintiff can choose how much of his damages should be kept as capital (a contingency fund), and there are various ways in which the structured settlement can be tailored to the individual's needs. The great advantage for a plaintiff is that the income is guaranteed for life, however long that might be, subject to the financial stability of the insurance company which is used to provide the annuity, and it is usually linked to inflation. The main disadvantage seems to be that the plaintiff loses control of the money which goes into the annuity, so that, if something unforeseen happens which requires him to use part of his capital, it will not be possible. A structured settlement is not possible unless the insurance company consents: it cannot be ordered by the court in the absence of consent.
There is a good deal of controversy at the moment about whether structured settlements are, or are not, a good thing (see, for example the Law Commission's Report on Structured Settlements [Law Com No 224] 1994). Each case should be considered on its own merits, because not all are appropriate for this type of disposal: it is important to get the best advice. The decisive consideration is often security for the plaintiff and his family: when life has collapsed around you, it must be some comfort to know that you will receive a guaranteed income for life, linked to inflation.
The Law Commission made several recommendations:-
- There should be no judicial power to impose structured settlements.
- Life offices should be able to make payments under annuities bought by defendants free of tax direct to the plaintiff.
- There should be provision for statutory structured settlements.
- The position of intermediaries acting for both parties should be considered by the relevant professional bodies.
Sherrod Taylor, an American attorney, said to me the other day: "The Americans and the British have the best system of personal injury litigation in the world: unfortunately, half of it is in America, and half is in Britain!". We had just come to the end of a week long fatal accident trial in his home state of Georgia, during which I had been able to compare all aspects of a non-jury trial over there with our usual High Court case. I thought people might be interested in the real differences, partly because we hear so much about the American system, and also to see whether we could learn from them. Also, although I agree with a lot of Lord Woolf's proposals, I do feel that they would benefit from scrutiny under the light of an alternative system, particularly one which is so similar to our own.
THE JUDGE
He was probably the equivalent of our Circuit judges, although he was trying a case in which damages were claimed of $4.7 million, and a realistic assessment of the likely award, if liability is established, is $1.5 million. The most noticeable aspects to me were the lack of interruptions (this is not a criticism of our judges, but a comment on the different approaches) - he only asked two series of questions during the whole five days. He was unfailingly courteous, but combined this with quick and decisive rulings on the preliminary and procedural matters. Lord Woolf wants to create a system in which interventionist judges manage cases efficiently, but the contrast in the approach of the American to the English suggests that, possibly, only a very few of our judges would be prepared to adopt a truly interventionist, efficient management system.
INTERLOCUTORY ISSUES AND DIRECTIONS
Lord Woolf would have liked this judge's approach. He had a "pre-trial conference" at which the attorneys attended (by which I mean the actual advocates who conducted the trial), and of which a transcript was made (which I think would not have been necessary if the order for directions was sufficiently detailed and precise). When it was demonstrated that the Defendants had failed to comply with what the judge had ordered on that directions hearing, he barred them from pursuing the point in question. All such issues were dealt with in a remarkably short time. In addition, he had ruled at a preliminary hearing that the Defendants were barred from running one element of their defence (a very significant aspect of it) because they were in breach of procedures.
THE ADVOCATES
Of course I am biased, because Sherrod Taylor has been a friend of mine for several years. He had "associated" another trial lawyer (their equivalent of barristers), and they were joined on counsel's bench by one of the English solicitors, Hilary Meredith, a partner with Donns of Manchester. I thought that our attorneys were excellent advocates, the equivalent of our silks. The attorneys on the other side, both government employed, struck me as being very poor: they did not seem to have any appreciation of the commercial realities, nor of court procedures and techniques. Having said that, there was no unpleasantness by either side, and very few of the objections which we imagine are the constant cut and thrust of American litigation. That may have been because our side made a deliberate decision to understate the case and to take a relaxed view about the evidence put before the judge, but whatever the reason both sides behaved with dignity. It was interesting that our attorneys had divided the case between them: Sherrod specialises in the financial aspects (and in appeals, which seem to be a more prominent part of their system), and he left all the rest of the case to the other attorney. That division paid off: our economist put the value of the deceased's life at just over $2 million, whereas theirs assessed it at about $300,000. After half an hour of careful cross-examination (the result of hours of preparation during the previous evenings), Sherrod forced the defence expert to volunteer the information that he had made a mistake (naturally he could not imagine or explain how it had come about!), so that his figure of $300,000 was increased to $1.3 million.
THE COURTROOM
If you removed the Stars and Stripes, and the portrait of the previous resident judge, you could have been in England.
WRITTEN SUBMISSIONS
Before the trial started, each side had to submit to the judge their Proposed Findings of Fact and Law. It was agreed beforehand that, at the conclusion of the case, they would amend those submissions in the light of the evidence. This seems to be the equivalent of our summary openings and skeleton arguments.
THE SPEECHES
Each side spent about ten minutes opening their cases and, when it came to closing, the judge allowed them 35 minutes each, which seemed to be adequate!
LEGAL ARGUMENT
I cannot help comparing this trial with one which I had done in England the week before, in which there was an issue whether the defendant was covered by insurance. There was a House of Lords case bang on point, but my opponent felt it necessary to refer in addition not only to the Court of Appeal decision in the same case but also to several other cases decided previously. Although I did not time him, this part of the submissions alone must have taken an hour or more. In the American trial, there were also cases on point: they were attached to the written submissions, and no more than five minutes was spent in all, by both sides, in reading from the judgments.
THE RECORD
This seems to play an important part (which may explain why, in all those old Perry Mason films, when an objection is sustained, the question is struck from the record). The record is all important on appeal, and therefore the parties pay much closer attention than we do to the technical admission of exhibits. It seems to mean that a transcript of the entire trial is considered necessary.
WITNESS EVIDENCE - pre-trial
I felt that their system is significantly more cumbersome than ours. They do not regard a simple statement of a witness, or a straightforward medical or expert report as being adequate, and I think that they may waste a lot of time taking depositions. Of course, it may well be useful to have the ability to cross-examine witnesses well before trial (as in our old style criminal committals from the magistrates to the Crown Court), but it seemed to me that it was in reality a costly and potentially wasteful exercise. By way of example, it was thought necessary to take a deposition from a surgeon in England who had prepared a perfectly innocuous report which we would have agreed without hesitation. It is made more complicated and difficult by their requirement to list all the witnesses whom they may call, rather than those they intend to call. Apparently, a technique is to list every witness you can think of (the Defendants listed 35 in our case, and called only about half a dozen of them) so that your opponent does not know which witnesses he should concentrate on. This was made more difficult for our attorneys because we had witnesses from Korea, Brazil, Germany, England and America.
WITNESS EVIDENCE - at trial
They have a court stenographer, just like us, but the similarity ends there. The judge never once interrupted the witnesses so that he could keep up with his note (he was not taking one). The result was evidence which flowed naturally, and we got through so much quicker. This was one of the most noticeable differences, and one which it would be easy to implement here. The stenographer's machine was connected to a notebook computer which was in turn connected to the judge's notebook computer. He therefore had an instantaneous transcript on his hard disk. The stenographer could correct the transcript overnight (the parties had to pay for the basic service, and so all they had to do was to pay more for express correction). I understand that we are currently testing a similar system. The cross-examination was similar to ours, although the re-examination ("re-direct") seemed a little longer.
THE COURT DAY
The standard day in that type of court is from 9 a.m. to 5 p.m.. Assuming an hour and a quarter for lunch, and morning and afternoon breaks of 15 minutes each, they sit for 6.25 hours a day: our standard day, excluding lunch, is 3.5 hours, so that they are managing 78% more work a day than us! I'm bound to observe that they looked perfectly healthy on it.
THE VALUE OF THE CLAIM
The deceased was a man of 26, in the Army at the time of the crash, but intending to leave in the hope of doing better in the outside world. Using his Army salary, the value of his lost earnings was in the range of $1.3 to $2 million, and that is said to be the tangible value of his life. In addition, the judge is entitled to award an unspecified sum for the intangible value of the life which was cut short by the negligence of the Defendants' employee. Of course, that money is paid to the next of kin, which we might say is inappropriate in the sense that what they have lost, their son, is beyond value. Personally, I prefer the American philosophy, which is to say that this young man's life was valuable, and to set compensation accordingly. I think I am right in saying that we would have valued his life at the cost of his funeral.
CONCLUSIONS
Sherrod was right: each system has its strengths and weaknesses. I was particularly interested to see, immediately on my return, the case of Beachley Property Ltd v Edgar reported in the Times on the 18th July 1996. Lord Woolf emphasised that breach of the rules may well prevent a party adducing evidence even if the other side cannot prove prejudice, and I see that decision as the final nail in the coffin of all lawyers who, accidentally or deliberately, cannot conduct litigation efficiently. I realise that I may have a bee in my bonnet about efficiency (hence my kite mark), but I remember saying, in the very first lecture I gave after taking silk, that this was an important way forward in personal injury litigation. That was before Lord Woolf made his recommendations, and I still believe that there is no need to make radical changes to the existing system: what is needed, by the judiciary as much as everyone else, is the realisation that efficiency is possible, and will achieve worthwhile results. If our judges, at all levels, took the same firm line as the judge I saw in America, we would soon alter our working practices so that we could comply with moderately short timetables, and we would stop "back-loading", namely leaving everything to the last moment.
BILL BRAITHWAITE Q.C.
The Law Commission's Consultation Paper on "Damages for Personal Injury: Non-Pecuniary Loss" has spurred me to consider again a topic for reform which I have had in mind for a couple of years. Ever since the Judicial Studies Board published their Guidelines for the Assessment of General Damages in 1992, it has seemed to me that it might be possible to develop their structured approach a little further. The philosophy underlying the Guidelines is that "some broad working consensus" on damages for pain, suffering and loss of amenity is "highly desirable", with which I agree. Would it not be practical to move one step further along that road, and try to ensure that plaintiffs of significantly different ages receive compensation which is more directly related to their ages? There is no doubt that this is theoretically possible: it is known as the "per diem" approach, and it is used in some states in America. Bearing in mind that some people are not keen on the American experience, this may seem superficially to be an unattractive development, but it might lead to a more just result.
To try to demonstrate the point, I have selected two cases of paraplegia from my booklet on Litigation involving Injury to the Brain and Spine: in Brignall v Kelly, decided on the 20th January 1993, general damages for pain, suffering and loss of amenity were £80,000 (now £86,500) for a man aged 26 at accident and 32 at trial: in Tate West Cornwall Health Authority (7/1/94) the figure was £85,000 (now £89,700) for a man of 64 at accident and 70 at trial. Recognising that the latter case was one in which the defendant health authority had made the plaintiff's plight worse by appalling treatment, and that therefore the figure for pain and suffering may have been extreme, nevertheless the difference between the two cases is startling. Assuming a life expectancy of 42 years in Brignall, and taking into account the years between accident and trial, the annual equivalent, up-dated, is £1,802, whereas in Tate, assuming four years' expectancy, it is £9000. If, instead of using the actual number of years as the divisor, one were to use an actuarial figure, the annual equivalents would be £3,604 and £6,900.
Coupled to that difference is the argument that it is worse to lose almost the whole of your adult life to paraplegia (although the contrary view is that it is terrible to have your declining years ruined). If the J.S.B. were to say, for example, that the range of annual figures for paraplegia should be between, say, £3,000 and £5,000, the apparent disparity might not be so great in the case of plaintiffs of significantly differing ages. Is there, I ask, any real philosophical difference between giving a range of lump sums, as at present, instead of a range of annual figures? The effect of this suggestion would depend on how the range of annual figures was set: taking the example above, and using 3% multipliers, a female paraplegic of 16 who received an award of £90,000 (upper average in today's money?) would be getting the equivalent of £3,200 a year: at £5,000 a year she would get £140,000 - not a ridiculously large sum. Whatever level is chosen, it would be possible to make sure that the final award struck the balance between doing our best to compensate the plaintiff for the incalculable physical loss, and steering clear of unacceptably high awards.
I am not putting this suggestion forward as the definitive way forward, or even as a firm proposal. I simply think it would be useful to explore ideas like this in order to see whether we can improve the existing system. For those of you who tend to resist change, thinking that the present state of affairs is satisfactory, I would just point out that it is not so long ago that judges refused to have other cases cited in personal injury actions, on the basis that their experience was sufficient unto itself, and it took quite some time before Kemp & Kemp was accepted as the standard text book, and one which could actually help judges and practitioners to be a little more precise and predictable in their assessments.
Cerebral palsy develops in two or three out of a thousand live births during the first years of life. Its association with complications during childbirth has led to controversy and litigation. A common assumption has been that perinatal asphyxia is the usual cause of cerebral palsy in term babies, although a realistic estimate is said to be that around 10% of cases of cerebral palsy stem from adverse intrapartum events. Legal practitioners in the U.K. have become used to the Freeman and Nelson criteria, but are effectively being asked to reconsider the position in the light of the so-called International Consensus Statement.
This Statement was published in the British Medical Journal on the 16th of October 1999 (BMJ 1999; 319:1054-9). It was made by the International Cerebral Palsy Task Force consisting of 49 people from seven countries. The Statement has the support of a large number of the various Colleges of Obstetricians and Gynaecologists around the world, including the Royal College of Obstetricians and Gynaecologists.
The Statement starts off by referring to studies which indicate that, in most cases of cerebral palsy, the causative event took place before the onset of labour or after the baby had been born. These events include coagulation disorders, infection, and hypoxia earlier on during the pregnancy. Studies put the proportion of cerebral palsy cases caused by events other than birth hypoxia at as much as 90 per cent. The Statement refers to the typical features of "fetal distress" (e.g. fetal heart rate changes and passage of meconium) as neither sensitive nor specific to any particular cause.
The central part of the Statement is the Table of "Criteria to Define an Acute Intrapartum Hypoxic Event":
Essential Criteria
- Evidence of metabolic acidosis in intrapartum fetal, umbilical arterial cord, or very early neonatal blood samples (pH < 7.00 and base deficit > 12 mmol/1).
- Early onset of severe or moderate neonatal encephalopathy in infants of > 34 weeks' gestation.
- Cerebral palsy of the spastic quadriplegic or dyskinetic type. (Not other types). Criteria that together suggest an intrapartum timing but by themselves are non-specific.
- A sentinel (signal) hypoxic event occurring immediately before or during labour. (e.g. ruptured uterus or cord prolapse)
- A sudden, rapid and sustained deterioration of the fetal heart rate pattern usually after the hypoxic sentinel event where the pattern was previously normal.
- Apgar scores of 0-6 for longer than 5 minutes.
- Early evidence of multisystem involvement.
- Early imaging evidence of acute cerebral abnormality.
All three of the essential criteria are said to be necessary before birth hypoxia can be considered as a cause of cerebral palsy. If one is not met, this is said to suggest strongly that birth hypoxia cannot be the cause. If the three essential criteria are met, criteria 4 to 8 are then considered, to deduce whether the hypoxia was indeed acute rather than chronic. Most of the five criteria (4 to 8) are said to be necessary for the balance of probabilities to suggest an acute timing to the hypoxic event.
The Statement also includes a Table of "Factors that suggest a cause of cerebral palsy other than acute intrapartum hypoxia":
- Umbilical arterial base deficit less than 12 mmol/l or pH greater than 7.00;
- Infants with major or multiple congenital or metabolic abnormalities;
- Central nervous system or systematic infection;
- Early imaging evidence of longstanding neurological abnormalities for example, ventriculomegaly, porencephaly, multicystic encephalomalacia;
- Infants with signs of intrauterine growth restriction;
- Reduced fetal heart rate variability from the onset of labour;
- Microcephaly at birth (head circumference less than a third of the centile); Major antenatal placental abruption;
- Extensive chorioamnionitis; Congenital coagulation disorders in the child;
- Presence of other major antenatal risk factors for cerebral palsy for example, preterm birth at less than 34 weeks' gestation, multiple pregnancy, or autoimmune disease;
- Presence of major post natal risk factors for cerebral palsy for example, postnatal encephalitis, prolonged hypotension, or hypoxia due to severe respiratory disease;
- A sibling with cerebral palsy, especially of the same type.
Meconium staining of amniotic fluid and placental pathology are said to be signs of less predictive value.
The Task Force recommended that the terms "fetal distress" and "birth asphyxia" should not be used. They recommended that fetal distress should be replaced by the term "non-reassuring fetal status". However, this does not run off the tongue nearly as easily and I suspect it may not be widely adopted in the emergency situation. Birth asphyxia should be replaced with asphyxia with reference to its specific timing.
Further details of the statement are available on the BMJ's website www.bmj.com.
COMMENT
Although the Courts are the last on the list of organisations which the statement is aimed to help, we suspect that its publication is aimed mainly at the area of litigation, rather than research, and this is a view shared by others, notable being the editor of Medical Litigation. Indeed, one of the five tables published in the statement gives recommendations for expert witnesses. Clearly the Statement is intended to have a significant impact on this area of litigation, but whether is does may depend on the response of the medical and legal professions in this country. A good start has been made by Clinical Risk, which contains an article by Dear, Rennie, Newell and Rosenbloom arguing that the Statement is not based on adequate appraisal of the available literature, that it does not represent international consensus, and that its arguments are not well-founded. The article asserts that the Statement has an unbalanced constitution.
The Statement may carry some force because it appears to have the support of a large number of the relevant Colleges in America, Australia, New Zealand and the UK. However, it is envisaged that further statements will follow and that other international researchers will contribute to those. In the meantime, legal practitioners for claimants will have to be assiduous in ensuring that their experts are alive to the very real threat posed by this apparently respectable Statement.
LB
Tetraplegia and brain damage
20% deduction for failure to wear a seat belt
DOB 1981
Accident2005 Age then 24 Age now 28 years 3 months
SUMMARY
PSLA 242,650
PAST LOSS 1,225,590
FUTURE LOSS 6,167,583
TOTAL CLAIM 7,635,823
X 80% 6,108,658 __________________________________________________
PAIN, SUFFERING AND LOSS OF AMENITY
Award 230,000.00
interest 12,650.00
TOTAL PSLA 242,650
PAST LOSS
Earnings 48,708
Care 622,862
Carers food allowances 900
Case management 66,497
Consumables 900
Transport 80,000
Clothing 248
Physio 10,836
OT 2,516
Treatment 19,000
Equipment 40,000
Accommodation 300,000
Running 6,105
Recreational 10,000
Miscellaneous 7,516
Medical 9,500
TOTAL PAST LOSS 1,225,588
Interest 0.00
TOTAL PAST LOSS INCL INTEREST 1,225,588
FUTURE LOSS
Multipliers
life 24.85
work 21.01
Earnings 336,206
Care
Employed, Bank hols, team leader,
subsistence, training courses, insurance 4,597,250
childcare w/day 28,188
childcare w/end 22,022
gardener 26,220
decorating 13,110
exterior decorating 2,622
Total care 4,689,412
Case management 198,800
Equipment 697,050
OT + Chiropody 15,270
Medical costs 94,883
Physio 48,622
Assistive technology 19,864
Accommodation 195,604
Running costs 24,850
Transport 18,448
Miscellaneous 27,373
TOTAL FUTURE LOSS 6,366,383
BILL BRAITHWAITE QC and DAVID KNIFTON 31/08/2010
H.B.
Liability compromised at 50%
Settlement at mediation for £1 million
Lump sum, not periodical payments order
In 1992 H. B., who was born in 1986 and was 24 at the date of settlement, was seriously injured in a road traffic accident. Judgment was entered in her favour for 50% of the full value of the claim. At a mediation held in 2010, settlement was reached. The offer of settlement was £1million, representing 50% of the claim on full liability.
The Claimant suffered severe injuries in the accident. She suffered a compound fracture of the skull affecting the right parietal zone, fracture dislocation of the seventh cervical vertebrae, fractured ribs from 2 to 6, right sided lung contusion, fractured inferior pubic ramis of the pelvis and a liver laceration. She suffered a laceration to the scalp, laceration to the right side of her tongue and some loosening of the teeth. She was initially ventilated to prevent cerebral swelling. She was in intensive care for 2 weeks. After 7 to 8 weeks she was discharged from hospital. As the Claimant recovered physically it became apparent that she suffered neuropsychological deficit and behavioural problems as a result of the accident. The Claimant suffered a severe brain injury. She has been left with limited insight into her ongoing difficulties and has suffered behavioural and personality changes.
After spending a period at mainstream school the Claimant required placement in a designated special unit. Ultimately she attended Hereward College which is a residential college for students with special needs. She returned to live at home initially with her mother. For approximately 10 months she has now been living with her partner and their young child in private rented accommodation (very close to her mother's home). However, Ms B is not capable of living independently without considerable support.
She has previously attempted part time work which unfortunately failed. She is receiving ongoing support by way of case management and support worker package.
In summary the medical evidence agrees this was a severe injury which has had a catastrophic effect upon the Claimant. She has a significant range of cognitive problems and general intellectual decline as well as difficulties with higher executive functioning. She will never live an independent life and is unable to work in the competitive market (although some part time supported work may in the future be open to her). But for the accident she would have been a person of average intellectual abilities and would have led a normal independent life. However, she has now impairments in her cognitive function, disturbance in her behaviour and personality, and she is disinhibited and impulsive and her behaviour can be poorly controlled. She lacks capacity to manage her own affairs.
There was a real issue between the care experts as to the amount of care and case management the Claimant will require into the future. At present, she has a support worker every weekday for 6 hours (making a total of 30 hours per week). The Claimant's expert's evidence was that this was an appropriate level of care and the Claimant would continue to require care at this level for the rest of her life, whereas the Defendant's expert accepted a lifelong need for support but anticipated a reduction over the next 12 months to 21 hours per week.
Further, the Claimant will require case management support for life.
Pain, suffering and loss of amenity
Schedule |
Compromise |
Counterschedule |
|
Award |
130,000.00 |
100,000.00 |
80,000.00 |
Past loss
Earnings |
71,057.00 |
35,528.50 |
40,000.00 |
Family care |
91,824.00 |
55,094.40 |
35,485.00 |
Paid care |
46,820.00 |
42,138.00 |
20,305.00 |
Case management |
40,221.00 |
30,165.75 |
20,730.00 |
OT |
48,007.00 |
33,604.90 |
10,000.00 |
Neuropsychology |
6,150.00 |
6,150.00 |
4,297.00 |
Court of Protection |
30,784.00 |
27,705.60 |
25,881.00 |
Additional expenses |
594.00 |
0.00 |
0.00 |
TOTAL PAST LOSS |
335,457.00 |
230,387.15 |
156,698.00 |
Multipliers
Schedule |
Compromise |
Counterschedule |
|
Life |
32.05 |
31.42 |
29.51 |
Earnings |
21.48 |
17.53 |
17.53 |
Loss of earnings
The Claimant is not likely to hold down any form of remunerative employment save for some supported part-time work in the future. In the absence of the accident she had a normal earning capacity.
Schedule |
Compromise |
Counterschedule |
|
Earnings |
358,409.57 |
232,950.00 |
85,018.00 |
Care/case management
This head of loss was the most significant element of the Claimant's claim.
Schedule |
Compromise |
Counterschedule |
||
Care |
924,338.00 |
867,239.13 |
473,577.00 |
|
Schedule |
Compromise |
Counterschedule |
||
Case management |
303,193.00 |
282,780.00 |
207,235.00 |
The claim for future neuropsychology is for a maintenance level for life.
ScheduleCompromiseCounterscheduleNeuropsychology
62,892.00 |
21,994.00 |
7,350.00 |
The Claimant's need for occupational therapy is also likely to plateau to an annual maintenance level.
Schedule |
Compromise |
Counterschedule |
|
OT |
64,997.40 |
15,081.60 |
0.00 |
It is agreed that the Claimant lacks capacity to manage her own affairs and will continue to require the services of a professional deputy for life.
Schedule |
Compromise |
Counterschedule |
||
Court of Protection |
366,931.00 |
300,000.00 |
251,900.00 |
SUMMARY |
SCHEDULE |
COMPROMISE |
COUNTERSCHEDULE |
PSLA |
130,000.00 |
100,000.00 |
80,000.00 |
PAST LOSS |
335,457.00 |
230,387.15 |
156,698.00 |
FUTURE LOSS |
2,134,284.47 |
1,720,044.73 |
1,025,080.00 |
TOTAL CLAIM |
2,599,741.47 |
2,050,431.88 |
1,261,778.00 |
X 50% |
1,299,870.74 |
1,025,215.94 |
630,889.00 |
After considerable negotiation in mediation the Defendant offered, and the Claimant accepted, a sum of £1,000,000.
As the Claimant only recovered 50% of the full value of her claim, a periodical payments order did not seem to be appropriate. The Claimant's solicitors obtained financial advice which confirmed that a PPO would not be viable in the circumstances. For the Claimant to maximise her damages she would be better to invest them more freely than the provision of a PPO would allow. Further, the Defendant was not willing at the mediation to make any offers other than on a lump sum basis. If the Claimant had wished for a PPO this issue would have had to be litigated with additional costs risks.
28/08/2010
BILL BRAITHWAITE QC
CATHERINE HOWELLS
Tetraplegia C5 ASIA
Settled for a lump sum of £2 million
DOB 1952
Accident 2004
Age then 52
Age now 57y 7m
SUMMARY
PAIN, SUFFERING AND LOSS OF AMENITY 100,000
PAST LOSS 84,898
FUTURE LOSS 2,248,678
TOTAL CLAIM 2,433,577
X 85% 2,068,540
______________________________________________________________PAIN, SUFFERING AND LOSS OF AMENITY
100,000
PAST LOSS
Earnings 8,903
Family care 58,552
Miscellaneous 7,100
TOTAL PAST LOSS 74,555
Interest 10,343
TOTAL PAST LOSS INCL INTEREST 84,898
FUTURE LOSS
Multipliers
life 19.45
work 5.23
Earnings 25,099
Care 1,187,403
Case management 164,547
Total care & case m
Equipment 136,150
Medical
treatment 34,037
OT 1,080
Chiropody 4,250
Physio 17,457
Total medical 60,052
Accommodation
RvJ pa 29,175
purchase costs 14,281
costs on sale 17,894
adaptations 300,000
carers' room 3,810
insurance 825
extra gas and elec 5,000
Total accommodation 370,985
Heating 5,562
Phone, clothes, clean 6,180
Transport
Voyager
Tramper
Total transport 200,000
Holidays 61,800
Decorating etc 30,900
TOTAL FUTURE LOSS 2,248,678
DAVID TOLLEY and CARR (1), JOHNSON (2) and O™CALLAGHAN (3)
THIS IS THE CASE WHICH FEATURED IN THE NATIONAL PAPERS IN MAY 2010. THE CLAIMANT WAS PARALYSED WHILST RESCUING PEOPLE ON THE MOTORWAY, AND THE INSURANCE COMPANIES FOUGHT THE CLAIM RIGHT THROUGH TO TRIAL AT COURT.
THIS IS A COPY OF THE OPENING STATEMENT SUBMITTED TO THE JUDGE IN THIS CASE, BEFORE THE TRIAL STARTED. IT IS INTENDED TO SET OUT THE FACTS AND LAW, AND IDENTIFY THE ISSUES WHICH HE WILL HAVE TO DEAL WITH, AND SO SIMPLIFY AND CLARIFY HIS TASK.
CLAIMANT™S SUMMARY OPENING
INTRODUCTION
1. The Claimant was injured during the course of a rescue, and we would like to set the scene by gathering together some judicial comments on how the law tends to view the acts of a rescuer. These comments are not intended to be a statement of the law, just a starting point to the problem. The emphases are all mine. 2. œDanger invites rescue. T
he cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. " Cardozo J in Wagner v International Railway Co (1921) 232 NY Rep at page 180.
3. œThere is happily in all men of good will an urge to save those who are in peril " Morris LJ in Ward v Hopkins [1959] 3 All ER 225 at 234
4. œThe police constable™s act was due to his mental reaction, whether instinctive or deliberate ¦ " Lord Wright in Bourhill v Young [1942] 2 All ER 396.
5. œ¦ it could also have been reasonably foreseen that someone would be likely to seek to [attempt a rescue] and might either suffer injury or lose his life. " Morris LJ in Ward - this emphasises that rescuers may do dangerous things in the course of the rescue.
6. œIf C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous over-concern for his own well-being or comfort¦ " Morris LJ in Ward.
7. œ¦ someone or other might be impelled to expose himself to danger in order to effect a rescue¦ " Lord Denning in Videan v British Transport Commission [1963] 2 All ER 860
8. œWhoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it. " Lord Denning in Videan.
9. œOne has a feeling of distaste about finding a rescuer guilty of contributory negligence. It can rarely be appropriate to do so, in my judgment. " Boreham J in Harrison v British Railways Board [1981] 3 All ER 679
10. œ¦ it was said that [the claimant] had been ˜unreasonably™ brave. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Such a contention cannot be here asserted. ¦ It must be remembered also that the chances of success of his attempt would diminish moment by moment if he tarried. " Morris LJ in Ward.
THE FACTS
11. The Claimant was driving his car south on the M53, on his way to work shortly before 7.30 am on the 21st November 2006. It was dark, but not completely so. He saw the sky getting darker, and then there was rain and a heavy hailstorm. He was overtaken by Mr Raywood in his very powerful BMW, going too fast; Mr Raywood lost control as he passed Mr Tolley, hit the barrier on the central reservation, and ended up mostly on the hard shoulder. Mr Tolley stopped, to check that Mr Raywood was alright. Having done that (and incidentally having got Mr Raywood to move his car out of lane 1, because it was sticking out), Mr Tolley was going back to his car when he saw that there was a black Vauxhall Corsa stationary on the opposite carriageway, nose-in to the central reservation crash barrier. The driver, Miss Carr, was still in the car, and Mr Tolley told Mr Raywood that they would have to get the driver out of her car. He crossed the south-bound carriageway to the central reservation, followed by Mr Raywood, and rescued Miss Carr, by getting her out of the car. He gave her over into the care of Mr Raywood, who was still on the southbound side of the crash barrier, and then went back to move her car, which was sticking out into lane 3 of the northbound carriageway. He checked, possibly on more than one occasion, that the northbound traffic was slowing and moving over into lanes 1 and 2. Whilst he was in the early stages of moving the car, Mr O™Callaghan drove into collision with the black Corsa, causing Mr Tolley™s injuries. At that time, it was probably neither raining nor hailing.12. None of the Defendants has admitted primary liability. It is said against Mr Tolley, by the First Defendant who created the danger, that œThe Claimant, having ensured that the First Defendant was in a relatively safe position on the central reservation, chose to place himself in a position of obvious danger by getting into the First Defendant's motor car. The Second Defendant adds that Mr Tolley should have waited for the emergency services to arrive. The Third Defendant, who ran into the black Corsa and injured the Claimant, asserts that the Claimant voluntarily put himself in a dangerous position and was the author of his own misfortune (!).
13. We suggest that the events took place as follows. Miss Carr negligently lost control of her car, and hit the central reservation crash barrier, thus creating the rescue situation. She remained in her car for several minutes (no explanation being given by her for that, but Mr Raywood says that she appeared to be frozen and was in shock), and was removed by Mr Tolley. He then went back to move the car. As he was in the process of doing that, but before he had got into the car, Mr O'Callaghan drove at significant speed into the black Corsa. It is possible that, before Mr O'Callaghan did the real damage, Miss Johnson in her green Vauxhall Corsa, hit the black Corsa a slight blow as she tried to drive past " she then hit a skip lorry in the middle lane. Both Mr O'Callaghan and Miss Johnson had passed a warning (œmatrix) sign about 1,200 metres before the accident site, alerting them to a problem which required an advisory speed limit of 50. Neither of them saw it.
14. Mr Tolley™s assessment that the black Corsa was a real danger to the drivers on the northbound carriageway was obviously correct, as demonstrated by the fact that it nearly caused a multiple pile up. He has made three statements describing his thought process, and the sequence of events. Of particular significance, we submit, are the following aspects:
1 Mr Raywood losing control at speed, and spinning right in front of Mr Tolley, must have been unnerving " it required emergency braking by Mr Tolley 2 Miss Carr was in great danger 3 her car was a great danger 4 Mr Tolley™s observation that the traffic was slowing and moving over is likely to be right " during the time that Miss Carr remained in her car, scores or hundreds of cars must have passed in lanes 1 and 2 5 Mr Raywood, who had the best opportunity to see what was going on, never demurred at the rescue suggestions made by Mr Tolley 6 the verge between the edge of lane 3 and the central reservation crash barrier was wide enough to take the black Corsa, if appropriate15. Police Sergeant Gregory was travelling north on the M53 at about the time of the accidents. He noticed a large bank of low clouds appearing in front of him; it began to rain slightly at first, increasing in severity. The road conditions then turned very poor with an obviously wet and slippery surface, and visibility was very poor due to the weather, lighting conditions and spray from other vehicles. He was driving very slowly. That description of gradually worsening weather conditions is supportive of Mr Tolley™s account, but seems to contradict the suggestion made by all three Defendants, that the bad weather came with no warning.
16. Mrs Hague gave a similar account. œI was driving in lane 1¦. I had slowed down to about 50 mph because of the weather. Hailstones were bolting against my windscreen and the road surface was very wet because it had also been raining heavily before the hail¦. I noticed a red skip wagon coming up behind me¦. I thought that the skip wagon was going too quickly for the weather conditions¦. I noticed a turquoise car (the Second Defendant) in the second lane or third lane corning up even faster. She said later that her speed was 40 to 50, and she clarified that Miss Johnson was, in her opinion, driving too fast for the very poor weather conditions caused by the very heavy rain.
. The Defendants gave the police the following accounts of their speed:
Miss Carr said that œI was probably travelling at around 65-70 miles at this time. After I had completed the manoeuvre I decided to move back into the middle lane. I began to slow, as I did so I felt the steering go very soft Police officer: œDo you know roughly what sort of speed you were travelling? Miss Johnson: œI think it was about seventy. Mr O'Callaghan: œI was doing between fifty and sixty I think. But he then added that he was doing a similar speed to Miss Johnson who, according to his Defence, œwas going too fast.17. There is a helpful joint statement by the accident reconstruction experts, containing the following information:
1 civil twilight commenced at 7.08, followed by sunrise at 7.48 2 there was a severe collision between the offside front corner of Mr O'Callaghan™s Ford Transit and the offside rear corner of the black Vauxhall Corsa 3 either there was only a glancing contact of minimal severity between the green Vauxhall Corsa and the black Vauxhall Corsa, or there was no contact 4 there is no one source of timings that applies to every feature of the relevant sequence " they show the police control room log timings, and other timings 5 the road surface was slippery - a friction level of about 0.3 to 0.4 (they used 0.3 to 0.5 for their calculations) is not unusual for a straight section of wet motorway, and such a level is adequate for normal driving, although not for heavy braking or sharp steering.THE LAW
18. The following are, we suggest, relevant statements of the law: 1 Lord Denning in Videan - œWhoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.2 Lord Justice Morris in Ward - œIt was further said that Dr Baker himself acted with negligence and that his death was caused or was partly caused thereby. This contention was not advanced harshly or in the language of any carping criticism: it was said that Dr Baker had been ˜unreasonably™ brave. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Such a contention cannot be here asserted. Dr Baker tied a strong rope round his body and arranged for the rope to be held by those on the surface and arranged to maintain oral communication with them. It must be remembered also that the chances of success of his attempt would diminish moment by moment if he tarried. He in no way acted recklessly or negligently.
3 œIn rescue cases, a rescuer, however brave, may yet be partially to blame if the action taken was unreasonable in all the circumstances. ¦. the standard applied by a court is unlikely to be exacting. Proper allowance will have to be made for the circumstances in which a rescue is attempted. It would be difficult to find fault where, at the time, it would have appeared that the chances of success were diminishing with each second of delay. " Clerk and Lindsell.
SUGGESTED CORE READING
19. 1 Mr Tolley™s statements 2 the statements of Sergeant Gregory, Mrs Hague, Mr Diamond, Mr Kelly, Miss Carr, Miss Johnson, Mr O'Callaghan and Mr Raywood 3 the joint statement of the reconstruction experts.20. If primary liability were to be admitted, it is probable that the only witnesses would be Mr Tolley and Mr Raywood.
28/04/2010
BILL BRAITHWAITE QC
B.E.
Severe brain damage Settled for about £5 million in July 2010 Date of accident: 1998 Claimant's date of birth: 1997 Age at date of accident: 9 months Age at date of trial 12 Settlement Lump sum £2,100,000 PPO to age 30 £43,000 PPO from age 30 £109,000 Approved 2010INTRODUCTION
B. E. is now 12. When he was 9 months old, he suffered severe injuries in a road traffic accident. The Claimant sustained brain damage, and will continue to demonstrate impairments of functioning as a consequence for the rest of his life. His most significant impairments will relate to his cognitive functioning and hence his ability to learn and make educational and social progress. It is anticipated that the Claimant will have problems with, amongst other things, numeracy, communication and poor co-ordination. He currently attends a special needs school where he requires one-to one assistance.PAIN, SUFFERING AND LOSS OF AMENITY
£150,000PAST LOSS
The Claimant has received a rehabilitative community care package from a very young age. He has had the benefit of continuity of care from his support team assisting him at home and in school. The Claimant has also received family care of the highest level. His mother gave up highly remunerative employment to provide case management/support for Ben for a period (see below).The Claimant has utilised the services of specialist brain injury case managers. For a period the Claimant's mother gave up her job to effectively carry out this role (see below). However, for the balance, the Claimant claimed the costs of the specialist services provided which was largely accepted by the Defendant.
A claim was presented for the Claimant's mother's loss of earnings which was contested in principle by the Defendant. The Claimant's mother was in full time employment from the date of the accident to March 2006. In her final year of employment she received a salary over £100,000. Had the Claimant not been injured she would have retained such work. She gave up work to assist with the Claimant's care when his full time carer significantly reduced her hours. A claim was presented for 33 months loss of earnings.
The Claimant has the benefit of a multi-disciplinary team to maximise his rehabilitation. Intensive therapy has been recommended and implemented by the therapists.
The Claimant's home was extended to provide him with a therapy room. Incidental costs were incurred to make good rooms after the alterations.FUTURE LOSS
It is the Claimant's case that, in the absence of the accident, the Claimant would have expected to have achieved academic success, probably attended university and probably attained a professional career.The most significant elements of the claim are made up of future care and case management. It was agreed by all the experts that B will require 24 hour support a day for the rest of his life. However, there remained a significant difference between the Claimant's and the Defendant's care experts as to how that need should be met.
The Claimant currently receives a package of therapies to maximise his independence and his rehabilitation.
Whilst the Claimant remains a child, he requires space at home to carry out his therapies, quiet space away from the family and kitchen space to carry out his occupational therapy. Although his parents' previous property was adapted to allow a therapy room, it was insufficient for the Claimant's ongoing longer term needs. As such, the Claimant's parents are purchasing a larger property: it is intended to ultimately transfer this into the Claimant's name. This property will provide the Claimant with a home for as long as he wishes. It has suitable carer accommodation within it so that the Claimant, with the support of a care package, can live there independently when he reaches adulthood.
In relation to the choice between a lump sum and a periodical payments order, the Claimant has a normal life expectancy. There are a number of benefits to the Claimant in having the care and case management element of his claim met by an annual periodic payment order (PPO). A PPO will guarantee the Claimant a tax free, index-linked income for life. The costs of care are likely to increase above the costs of inflation in the future but the PPO, linked to the appropriate index, should meet the Claimant's future care needs for life. The Claimant's parents agreed that a PPO best suits Ben's needs, and will provide security for his future.
SUMMARY
PAIN, SUFFERING AND LOSS OF AMENITY 150,000.00PAST LOSS
Care 239,596
Case management 29,757
Loss of earnings 50,000
Therapies 76,781
Aids/equipment 10,000
Accommodation 90,000
Travelling expenses 5,500
Deputyship costs 1,545
TOTAL PAST LOSS 503,180
FUTURE LOSS
Earnings 483,000
Pension loss 29,220
Care/Case management 3,251,606
Therapies 151,206
Accommodation 208,693
Travel 4,252
Equipment 20,265
Holidays 119,889
Deputyship 324,048
TOTAL FUTURE LOSS 4,592,182
GRAND TOTAL £5,245,362
BILL BRAITHWAITE QC, CATHERINE HOWELLS 28/08/2010
XY
Settlement 2010 for a lump sum and a periodical payments order, totalling about £5.2 million.
DOB 1994
Accident 1995
The figures set out below were not agreed, but they formed the basis of the settlement
SUMMARY
PAIN, SUFFERING AND LOSS OF AMENITY £214,460
PAST LOSS £557,667
FUTURE LOSS 4,415,621
TOTAL CLAIM £5,187,749
_________________________________________________________
PAIN, SUFFERING AND LOSS OF AMENITY
£200,000.00, with interest of £14,460.00
PAST LOSS
Care and case management
Family care £260,296.40
case management £11,573.43
Professional care £13,800
Medical treatment & therapies
SLT, physio, Kumon, coaching, OT, psychology, and neurological reviews
£20,000
Equipment £4,000
Accommodation £33,696
Transport £16,512
Management of award £1,734
Holidays £12,653
Miscellaneous £12,722
TOTAL PAST LOSS £386,987.08
Interest at 45.03% £170,680
TOTAL PAST LOSS INCL INTEREST £557,667.36
FUTURE LOSS
Multipliers
life 31.49
work 18.71
Earnings
14,100.00
716,008.33
Total earnings £374,100
Pension 0.00
Care and case management
lump sum element 0.00
annual periodical payments order 117,396
Medical treatment & therapies
neuro review 20,000
educational psychologist £5,000
neuropsychologist £10,000
OT £5,827
SLT £34,529
physio/hydro £30,711
one off swimming costs 1,050
gym support worker 13,095
chiropody £6,298
medication £2,723
Total medication & therapies £129,235
Equipment £20,000
Accommodation from Reynolds
Rent £24,000
Roberts v Johnstone £314,900
relocation £24,880
adaptations £118,000
Running £146,801
Total accommodation £603,701
Travel £6,983
Holidays £125,960
Management of award £299,460
Miscellaneous
DIY, decorate, garden £34,636
laundry £6,415
breakages £6,298
TOTAL FUTURE LOSS £4,415,621
BILL BRAITHWAITE QC
28/08/2010
LD
Severe brain damage Settlement at over £4 million Periodical payments order Practical difficulties of managing a young man with behavioural problemsThe Claimant was born in 1989 and so was 15 at the date of the car accident in 2004. He was 21 at the date of settlement.
He sustained severe brain damage, and was unable to live without support. His mother and stepfather found it very difficult to cope, and eventually separated. That seemed to cause more problems, examples of which are below:
He was verbally aggressive, with threats to physically harm staff Again, verbally aggressive outburst, this time with threats to go home to his mother’s house and end the rehabilitation Another verbally aggressive outburst, with threats of violence towards family members â€" possibly caused by family giving L the impression that people are stealing money from him or keeping his mother short of money. Family may have also burdened L with their own personal problems.Because his mother had been responsible for the accident, she was not able to be the litigation friend (ie to make the decisions needed in the court case), nor could she be the Deputy (ie the person responsible for the day to day management of the compensation money). His stepfather did both jobs initially, but because of family difficulties it was eventually necessary to replace him with a professional (a solicitor), who became both the financial deputy, and the welfare deputy with authority to make life decisions on the Claimant’s behalf. It is most unusual for a welfare deputy to be needed, but it can be problematic to manage a person with a severe brain injury. It is very rarely appropriate to force them to do things, which means that families need topull together to persuade the injured person to achieve the best he or she can in the circumstances.
The defence solicitor was particularly awkward, but in the end saw sense and settled the claim at a reasonable level. The figures are set out below.
SUMMARY
PAIN, SUFFERING AND LOSS OF AMENITY 150,000PAST LOSS 300,114
FUTURE LOSS
Multipliers
life 31.22
work 22.78
Care and case management â€" periodical payments order £90,000 pa
Earnings 300,081
Court of Protection 200,000
Therapies â€" psychology, physio, speech, Botox 150,000
Accommodation 89,757
Holidays 62,440TOTAL FUTURE LOSS
3,502,898
BILL BRAITHWAITE QC and WILLIAM WALDRON 1st SEPTEMBER 2010
KS
Paraplegic, T10 motor and sensory complete
Liability settled at 75%
Settled for £1.6 million lump sum
DOB 1982
Accident 2005
Settled August 2010
PAIN, SUFFERING AND LOSS OF AMENITY 150,000.00
PAST LOSS
Earnings 59,150.00
Care 20,000.00
Other expenses 5,000.00
TOTAL PAST LOSS 84,150.00
FUTURE LOSS
Multipliers
life 23.43
work 21.01
Earnings 327,801.24
Care
28 to 45 138,800
45 to 55 145,569
55 to 61 242,450
Total care 526,819
Gardening, DIY etc 11,715
Case manager 234,300
Physio 50,390
Medical treatment 93,720
Accommodation
Roberts v Johnstone 292,875
"additional costs" 100,000
Running 46,860
Total accommodation 439,735
Motoring 195,250
Equipment 163,439
Holidays 93,720
TOTAL FUTURE LOSS 2,371,190
BILL BRAITHWAITE QC
28/08/2010
JPS
Severe brain injury Settled at mediation for £4 millionDOB 1971
Accident 2003 Age then 31 Age now 38 years 10 monthsSUMMARY
PAIN, SUFFERING AND LOSS OF AMENITY 200,000
PAST LOSS 352,200
FUTURE LOSS 3,713,677
TOTAL CLAIM 4,265,877
x90% 3,839,290
_______________________________________________________________PAIN, SUFFERING AND LOSS OF AMENITY 200,000.00
PAST LOSS
Total earnings loss 80,000.00
Total family care 36,120.00
Total professional care etc 203,533.00
Court of Protection 23,864.00
Miscellaneous 8,683.00
TOTAL PAST LOSS 352,200.00
Interest 0.00
TOTAL PAST LOSS INCL INTEREST 352,200.00
FUTURE LOSS
Multipliers life 25.79 work 16.50
Earnings 228,087
Care
1st 2 years 230,501 Remainder of life, including pension 2,794,155 Total care 3,024,656Holidays 40,000
Treatment Psychologist, OT, physio, gym, going out, racquet ball, Total treatment 93,273Court of Protection 249,660
Household 40,000
Transport 30,000
Accommodation 8,000
TOTAL FUTURE LOSS 3,713,677
BILL BRAITHWAITE QC and TONY GOFF 31/08/2010
K C T
Cycling accident in a park
Liability denied
Settlement achieved at £2 million
Mr KCT was born in 1962 and so was 44 at the date of the accident in 2007. He was 47 at the date of settlement in 2010.
At 7.30pm on a summer evening in 2007, Mr T was with his young daughter on a bicycle ride along a woodland path. He crashed and was thrown over the handle bars when his cycle ran into a large hole which had been dug across the path, probably by young lads using the area for a mountain bike route. Mr T is now tetraplegic.
The Defendant denied liability, but eventually offered £2 million in settlement.
31/08/2010
BILL BRAITHWAITE Q.C.
B.E.
Severe brain damage Settled for about £5 million in July 2010 Date of accident: 1998 Claimant's date of birth: 1997 Age at date of accident: 9 months Age at date of trial 12 Settlement Lump sum £2,100,000 PPO to age 30 £43,000 PPO from age 30 £109,000 Approved 2010
INTRODUCTION
B. E. is now 12. When he was 9 months old, he suffered severe injuries in a road traffic accident. The Claimant sustained brain damage, and will continue to demonstrate impairments of functioning as a consequence for the rest of his life. His most significant impairments will relate to his cognitive functioning and hence his ability to learn and make educational and social progress. It is anticipated that the Claimant will have problems with, amongst other things, numeracy, communication and poor co-ordination. He currently attends a special needs school where he requires one-to one assistance.
PAIN, SUFFERING AND LOSS OF AMENITY
£150,000
PAST LOSS
The Claimant has received a rehabilitative community care package from a very young age. He has had the benefit of continuity of care from his support team assisting him at home and in school. The Claimant has also received family care of the highest level. His mother gave up highly remunerative employment to provide case management/support for Ben for a period (see below).
The Claimant has utilised the services of specialist brain injury case managers. For a period the Claimant's mother gave up her job to effectively carry out this role (see below). However, for the balance, the Claimant claimed the costs of the specialist services provided which was largely accepted by the Defendant.
A claim was presented for the Claimant's mother's loss of earnings which was contested in principle by the Defendant. The Claimant's mother was in full time employment from the date of the accident to March 2006. In her final year of employment she received a salary over £100,000. Had the Claimant not been injured she would have retained such work. She gave up work to assist with the Claimant's care when his full time carer significantly reduced her hours. A claim was presented for 33 months loss of earnings.
The Claimant has the benefit of a multi-disciplinary team to maximise his rehabilitation. Intensive therapy has been recommended and implemented by the therapists.
The Claimant's home was extended to provide him with a therapy room. Incidental costs were incurred to make good rooms after the alterations.
FUTURE LOSS
It is the Claimant's case that, in the absence of the accident, the Claimant would have expected to have achieved academic success, probably attended university and probably attained a professional career.The most significant elements of the claim are made up of future care and case management. It was agreed by all the experts that B will require 24 hour support a day for the rest of his life. However, there remained a significant difference between the Claimant's and the Defendant's care experts as to how that need should be met.
The Claimant currently receives a package of therapies to maximise his independence and his rehabilitation.
Whilst the Claimant remains a child, he requires space at home to carry out his therapies, quiet space away from the family and kitchen space to carry out his occupational therapy. Although his parents' previous property was adapted to allow a therapy room, it was insufficient for the Claimant's ongoing longer term needs. As such, the Claimant's parents are purchasing a larger property: it is intended to ultimately transfer this into the Claimant's name. This property will provide the Claimant with a home for as long as he wishes. It has suitable carer accommodation within it so that the Claimant, with the support of a care package, can live there independently when he reaches adulthood.
In relation to the choice between a lump sum and a periodical payments order, the Claimant has a normal life expectancy. There are a number of benefits to the Claimant in having the care and case management element of his claim met by an annual periodic payment order (PPO). A PPO will guarantee the Claimant a tax free, index-linked income for life. The costs of care are likely to increase above the costs of inflation in the future but the PPO, linked to the appropriate index, should meet the Claimant's future care needs for life. The Claimant's parents agreed that a PPO best suits Ben's needs, and will provide security for his future.
SUMMARY
PAIN, SUFFERING AND LOSS OF AMENITY 150,000.00PAST LOSS
Care 239,596
Case management 29,757
Loss of earnings 50,000
Therapies 76,781
Aids/equipment 10,000
Accommodation 90,000
Travelling expenses 5,500
Deputyship costs 1,545
TOTAL PAST LOSS 503,180
FUTURE LOSS
Earnings 483,000
Pension loss 29,220
Care/Case management 3,251,606
Therapies 151,206
Accommodation 208,693
Travel 4,252
Equipment 20,265
Holidays 119,889
Deputyship 324,048
TOTAL FUTURE LOSS 4,592,182
GRAND TOTAL £5,245,362
BILL BRAITHWAITE QC, CATHERINE HOWELLS 28/08/2010
