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Solicitors Journal
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Claimants' and families' rights
Families
Quality of life
All claimants are different
Sensible and reasonable
Specialisation
Efficiency
Teamwork
Before I deal with specific parts of the litigation process, I have found, in writing this book, that certain aspects have loomed large as being particularly important to me, and I wanted to highlight them before I concentrate on individual aspects in separate chapters.
CLAIMANTS' & FAMILIES' RIGHTS
First, a thread running throughout is the rights of the injured person and his or her family. I don't mean just their legal rights, but perhaps more importantly their right to be treated decently at all stages of the litigation process. As part of that, I feel that they should be given as much informationas they require, and encouraged to ask questions at all stages, to which they should almost always be given full and frank answers.Their rights start with treatment in hospital. I see it as crucial to a good eventual outcome, following severe injury, that this treatment should be of the best. Although this may well be so in the acute stages (ie shortly after the injury), it can be seen more commonly nowadays that financial constraints limit the nature and extent of treatment and rehabilitation in these cases. If the family seek legal help early (and I do mean specialised legal advice), it is sometimes possible to augment National Health Service funds with an early payment on account (interim payment), and so to permit or arrange more suitable or extensive treatment and rehabilitation.
Whether that is feasible or not, it should be possible for all health professionals to communicate with the family, and to involve them to a degree which is acceptable to all
Introduction
Taking instructions
Liability
Quantum
Pain, suffering and loss of amenity
Financial loss
Los of earnings
Care
Case management
Accommodation
Aids and equipment
Transport
Therapies
Financial management of the award
Court of Protection
Evidence
Settlement of claims
The trial
After trial
General
INTRODUCTION
This chapter is not intended to be a comprehensive guide to enable the reader to conduct a personal injury claim from start to successful conclusion. As elsewhere in this book, I have selected those parts of the process which seem to me to be important.
TAKING INSTRUCTIONS
Of course the first step is that the injured person, or those who are responsible for him or her, must decide to consult a solicitor so that they can be advised whether they have, or might have, a claim against the person who they think caused the accident or injury. I would encourage people to take this first step: many people assume that there is no valid claim, and do nothing for
ACTION
The proceedings in court
BARRISTER
A specialist in the preparation and presentation of claims in court: nowadays, he should also be a specialist in the topic with which he is dealing, such as injury to the brain and spine
CLAIMANT
The word used since April 1999 for the person who has been injured, and who is bringing the action against the person responsible to recover damages - the previous word was Plaintiff
COUNTER-SCHEDULE
The document served by the defendant in response to the claimant's Schedule of Damage, challenging the parts in issue and explaining the arguments which will be put forward at trial
DAMAGES
Financial compensation
DEFENCE
The court document which sets out the reasons why the Defendant says he is not responsible for the injury or should not pay damages
DEFENDANT
The person said to be responsible for the injury
DISABILITY
Any restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human being
DISTRICT JUDGE or MASTER
The judge who decides the preliminary issues
GENERAL DAMAGES
All parts of the award of compensation which relate to the future (from trial) as distinct from the past (before trial)
HANDICAP
A disadvantage for a given individual, resulting from an impairment or a disability, that
General
Description of the brain
Different types of cause
Different types of injury
Post-traumatic amnesia
Oedema
Epilepsy
Behaviour
Cognitive deficits
Types of medical report
Other reports
GENERAL
About one million people attend hospital every year with head injuries, which account for 150,000 admissions a year, the largest group of which are young people. Contrary to popular belief, disorders of the brain and spine are tremendously common, frequently affecting children and adults in the prime of life. They are the single biggest cause of disability in the community, and spinal disorders are the most common single cause of lost working days in the country,
accounting for 67 million days, which is thought to represent an annual cost in lost production of £3 billion. In spite of this huge clinical problem, the whole of the British Isles is served by only about 132 neurosurgeons and about 170 neurologists; hence, 95% of head injury victims never see a specialist in the field.
So, most head-injured patients are young, and there is a peak in the rate of injury among 15 to 30 year olds (and another peak after the age of about 55). The significance of the statistic about the young is, of course, that there is, or was, a lifetime of work ahead of them, as part of an independent life, and thus the elements of care and loss of earnings are likely to be at their maximum. The fact that most victims are male may gradually reduce in significance as more and more women work, although industrial injury is not the main cause of these injuries; road traffic accidents are the major culprit, accounting for between a third and a half of all such injuries.
Note: it is important to distinguish between the head and the brain. It is possible to have
Description
Different types of cause of injury
Different types of injury
Respiratory complications
Urinary tract infections
Pain
Spasticity
Types of medical report
Other reports
DESCRIPTION
The vertebral column is built up from alternating vertebrae (there are 33) and discs, which are made of cartilage and act as shock absorbers. The disc is composed mainly of fibres (the annulus) surrounding a central pulpy substance (nucleus pulposus) which attracts water into the centre of the disc, making it resilient (in a young adult, 90% of the disc content is water, reducing to 70% later on). The vertebrae, which are made of bone, are joined by ligaments which are intended to protect the spine from extremes of movement. Of the 33 vertebrae, only 24 are independent, namely those above the sacrum. Each vertebra consists of a body at the front, and the vertebral arch at the back,
which contains the all-important spinal cord, the object being to provide a mechanically strong structure capable of protecting the cord from all but the most severe trauma. The vertebrae are divided into levels: 7 cervical, 12 thoracic (or dorsal), 5 lumbar, 5 sacral and 4 coccygeal. They are abbreviated by the initial of their area and their numbering from the top, for example C6 or T3. The cord is the line of communication between the brain and the rest of the body, and it ends near the base of the back, where it becomes the “Cauda Equina”(literally, horse's tail, due to its shape). Each vertebra has two facet (apophyseal) joints linking one vertebra to the next by articular processes. The sacro-iliac joints link the sacrum to the back of the pelvis. At each segmental level of the spinal cord, a nerve root leaves the cord on either side, passing through spaces between adjacent vertebrae (the intervertebral foramen - foramina in the plural).
DIFFERENT TYPES OF CAUSE OF INJURY
Generally spinal cord injury (S.C.I.) is caused as follows
AGNOSIA
Inability or impaired ability to recognise objects or other events via the senses
AFFECT
Emotional disposition
AKINESIA
Inability to start movement or slowness in movement
AMNESIA
Loss of memoryANARTHRIA
Inability to pronounce words
ANNULUS
The outer part of the vertebral disc
ANOSMIA
Loss of smell
ANOXIA
Failure of oxygen supply
ANTERIOR
APHASIA
Inability to use or understand language
APHONIA
Inability to make vocal sounds
APRAXIA
Inability to carry out actions
ATAXIA
Unsteadiness of gait
AURA
The warning that an epileptic seizure is imminent
BROCA'S AREA
The part of the brain responsible for the production of speech
BURR HOLE
Introduction
Life expectancy
Rehabilitation
Treatment and therapies
Accommodation
Care
Transport
Equipment
Leisure
Conclusion
INTRODUCTION
I think it is essential to consider a plan for the life of a seriously injured person. Statistically, most of those who suffer serious brain or spine injury are young, and the probability is that, following their accident, they will be looked after by family, usually parents or spouses. The burden on family carers is high, and there is a real risk that they will not be able to continue to cope with all the stresses and strains of looking after their loved ones. In the case of parents, or any family carer who is significantly older than the injured person, it is likely that they will pre-decease the patient, thus
depriving him of what may well have been a long-established pattern of care to which he has become accustomed. Many other changes are likely over the years, and they should all be considered and foreseen, wherever possible, by the legal and medical team, and discussed in detail with the injured person and his family. The one thing which is certain is that both the patient (assuming that he has a significant life expectancy) and his family will get older, and that this will have an impact on the way in which they all manage to cope. In order to create a plan which will cover all foreseeable eventualities, one has to consider every aspect of life; treatment and rehabilitation, accommodation, care, transport, equipment, leisure and therapies.
I have seen over a thousand severely injured people, and this question of making arrangements for the future is one which looms large: I remember one mother saying to me, after our consultation: “I feel much better: now I can die happy.”
The basics
Types of multiplier
Selection of the multiplier
The Discount rate
What level of risk should a claimant have to face
Discounting for contingencies
General
Conclusion
THE BASICS
When calculating future financial loss and expense, courts often use the multiplier/multiplicand system. The object is to assess “the present value of prospective loss”, as Lord Reid said in British Transport Commission v Gourley [1956] A.C. 185.
The first step is to establish the annual sum (the multiplicand) which has to be provided to cover the future yearly loss (for example, loss of earnings) or expense (such as the cost of care). When that has been done, it is then necessary to multiply it by a multiplier, which represents, but is not the same as, the number of years over which the loss will last or the expense will be incurred.
It is not sufficient simply to calculate the number of years in the future over which the loss will be sustained, because the money awarded by the court is paid in a lump sum at trial(for the purpose of this approach). That is in fact more advantageous than receiving the money every week or month over the years to come (it is called “accelerated receipt”).
The multiplicand is established in various different ways, depending on the nature and complexity of the facts in the case: the most obvious example is the person in a stable job who is injured so badly that he will never work again. If his annual earnings are clear, all that is needed is to make sure that he is given a lump sum which will, when “prudently invested” (Mallett v McMonagle 1970 A.C.166), provide him with the same net income as he would have earned had he not been injured. It is the calculation of this lump sum which requires the use of a multiplier. In order to decide the multiplier, we need to decide how many years of work have been lost, and this will depend on a factual finding by the judge: if (and I emphasise if) the
Introduction
Does it work?
Suitability of different types of rehabilitation
Rehabilitation into work
Rehabilitation and leisure
Cost effectiveness
Goals and targets
Conclusion
INTRODUCTION
Rehabilitation can be one of the most rewarding areas of the work I do. I travel the country seeing people who have been injured severely, all of whom want as good an outcome as is possible. Very often the National Health Service has not been able to provide any or sufficient rehabilitation, and one of the first areas I like to discuss when I see clients in consultation is whether there are avenues of treatment or rehabilitation which have not yet been explored, or which they would like to pursue further. It is quite common to find that there are suggestions which can be
made in order to give the injured person the best possible chance of a good outcome. If there are sensible avenues to be explored, then it is a matter of pride for the lawyers to be able to obtain money to fund whatever is reasonably necessary. This is done by an application for an “interim payment” (payment in advance of the final award of compensation), the principles of which are set out in a separate chapter.
DOES IT WORK?
Two questions arise frequently:-
1 Does rehabilitation work?
2 How do we know rehabilitation works?
These questions raise an issue of great importance in litigation involving brain (and spine) injury, namely whether in any particular case the claimant's lawyers are justified in advising or arranging specialist rehabilitation, which can be very costly and which sometimes lasts for many months or even over a year.
Introduction
History
Contributory negligence
Purpose of interim payment
Procedure
Statutory benefits and Social Security benefits
Summary
Conclusion
INTRODUCTION
One area of the law in which there is disappointment for many litigants is in relation to interim payments. If an action is commenced for damages for personal injury and loss arising out of an accident, the claimant is entitled to ask the court to order the defendant to pay some of the compensation in advance of the final award. The court's power is hedged about with limitations designed to make sure that a defendant is not prejudiced, but the power seems to have become even more limited in practice. The purpose of this chapter is to tell people of the general power, and then to encourage those to whom it may be relevant to use the power to its maximum, in order to relieve some of the worst effects of what is likely to
have been a catastrophic accident. In addition, defendants and their insurance companies may wish to consider the possibility that the sensible, early use of an interim payment might be a constructive and cost-effective approach to a claim. I deal in this chapter with the procedure in more detail than elsewhere, because interim payments are so important, and claimants are often discouraged by the technicalities.
HISTORY
The court was previously given the power to award an interim payment by Order 29 rule 11 of the Rules of the Supreme Court. Some of the limitations were contained in the rules themselves, the most important ones being that
(1) the defendant must be insured, or a public authority, or able to afford to make an interim payment, and
(2) the defendant must have admitted that the accident was his fault, or judgement
Introduction
The law
The decision-making process
The legal approach
The medical approach
The importance of getting it right
INTRODUCTION
Following a severe brain injury, it is important for the injured person's legal advisers to consider whether the effect of the injury has been so serious that the person is no longer capable of managing his own affairs. As a matter of fact, that question has to be considered if the lawyers have any real reason to suspect that the client may not be capable, whatever the cause of the problem; in other words, it need not be the injury which is the cause. If, after proper consideration, it is decided that the person is incapable, for whatever reason, two quite distinct consequences follow: first, it is necessary to appoint someone (“a litigation friend”) to manage the litigation, and to make all relevant decisions related to the conduct of the case.
For example, if the action has got to the stage where the insurance company makes an offer to settle the claim, a decision has to be made whether that offer should be accepted. If the client is not capable of managing his affairs, it obviously would not be right to expect him or her to make that decision. Accordingly, the litigation friend must do it. Secondly, whenever any money is received during the course of the case, or whenever the patient has money of his or her own, the Court of Protection has to be appointed to manage that money. It is not uncommon for a person to receive money after an accident (sometimes insurance, sometimes an interim payment) and, due to the damage sustained, to spend it inappropriately. I have seen several cases where that has happened, and sometimes tens of thousands of pounds have gone missing, either with no adequate explanation or in a sadly wasteful way.
Dealing first with the litigation friend, the essential requirement is to select a person who is thought to be suitable to make all relevant decisions during the conduct of the case. Usually
Introduction
Selection of the expert
The instructions
Formation of the team
The timescale
The consultation
The report
Time to trial
Exchange of reports
Discussions between experts
Joint instruction of experts
The listing system
The hearing
The adversarial system
An example
Conclusion
INTRODUCTION
I start this chapter with quotes from two cases, which emphasise the importance of selecting good experts, and using them appropriately.
1 “Regrettably, I was not at all impressed with some of the answers which I received from Mr *. I did not feel he was the wholly unbiased and independent witness one would expect. Some of his answers were given more or less on the hoof and were ill thought out.... (He) said he had performed about 2,000 terminations. However, .... in fact a very low number of terminations had been performed - probably one of the lowest rates in the whole country .... Mr * did admit that he must have been wrong about his figures. Asked how he felt about that he said that he did not think it important.... (he) told me .... that the split was 80% claimant to 20% defendant. However, again after further questioning, some of it by me, Mr * admitted he had never given evidence on behalf of any
Introduction
Schedules and Counter Schedules
Past and future loss and expense
Past losses
Future loss and expense
Sample Schedule
INTRODUCTION
Every aspect of the financial claim has to be supported by evidence. What I have tried to do is to highlight the approach which I think is likely to present a realistic picture of what a claimant has lost, and what he or she will need in the future.
SCHEDULES and
COUNTER SCHEDULES
Once the evidence is satisfactory, it is gathered together and put into money terms in a “Schedule”. This is supposed to be a document setting out the entire financial claim in such a way that it can be read easily, and understood by all concerned (claimant, family, experts, all lawyers, judge, and insurance representatives). It should not be full of jargon, nor should it be so full of complex calculations that it is
difficult to see how the figures are reached. In my opinion, it should be capable of standing on its own at a trial on quantum, so that anyone who reads it appreciates precisely what is claimed, and why, and possibly even what some of the real issues are. I think that the drafting of schedules is an art; part of the expertise is to present a document that the judge will be pleased to read, and which he will think makes his life easier.
The whole point of this document is to compare the claimant's position before the accident with his situation as he is following the injury. The questions we always ask are: “What would you have done? What would it have cost?” compared with “What will you do in the future? What will it cost?”.
The schedule is commonly called a “Schedule of Special Damage”. That is technically incorrect, because in current legal terms “special damage” is all loss and expense up to the date of trial, and it does not include future loss, whereas the schedule must deal with the future as well....
