When and how should Court assess chances in Personal Injury claims?

The Claimant was employed by the Defendant as a diamond core driller and as part of his employment was provided with the use of a company van. For some time the van doors were defective and as a result the Claimant was required to squeeze through the gap between the driver and passenger seats, move the content of the storage area of the van to the side, slide two 25 litre barrels of water to the side and then push the van doors open.

Whilst undertaking this task on the 16th March 2006 the Claimant suffered a significant prolapse of the disc in his back at L4/5 which despite surgery left the Claimant with substantial symptoms, permanently restricting his day to day activities and rendering him permanently unfit to work.

It was agreed medical evidence that the Claimant was suffering from a significant prolapse and that as a consequence he was left with a permanent disability and an inability to return to work.

The issues for the court to decide were the extent to which the Defendant employer was liable to the Claimant and if liable the extent to which the agreed injuries were caused by the negligence of the employer.

Liability settled just before trial with the employer finally accepting liability with a very small reduction for contributory negligence to reflect the risk of litigating the case before a Judge.

The issue of causation went to a hearing before the Norwich County Court were the Judge heard evidence from two expert orthopaedic surgeons. For the Claimant the opinion was that but for the accident this injury would not have occurred and even if the Claimant has suffered a prolapse it would have been very unlikely to have been as severe and without the significant consequences which occurred after the injury. For the Defendant the expert gave a view that the injuries would have occurred in any event within two years given the Claimants heavy work and smoking and that when the symptoms occurred they would have more likely than not been the same. However in cross examination the Defendant's expert made numerous concessions as to the percentage chance of the the symptoms being either

• As severe
• Of similar nature
• With the same effects on work and
• With the same urological consequences

As a result the Judge at first instance heard submissions from the Claimant that when assessing what would have happen in the future but for the negligent act that he should take account of the various risks and chances in particular given the view of Lord Diplock in Mallett v Mcdonall [1970] AC166 which stated :

The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

The Defendants sort at first instance to distinguish these appeal cases as only relating to a claim involving fatal injuries and that a judge should decide all matters on the "balance of probabilities" which is the test used by the court when addressing matters of past fact.

At first instance HHJ Curl sitting in the Norwich County Court held that the Defendants’ medical view was correct and applied the balance of probabilities test. As a result because the view of the Defendants’ expert was that it was over a 50% chance, although nowhere near certain, that the Claimant would suffer the same symptoms the Claimant should only recover compensation for two years. This was the period over which the Claimant would have developed the same symptoms in any event according to the Defendants’ expert.

The Claimants appealed on the ground that the Judge did not correctly apply the law which required him to reflect the risks of various possible outcomes, to include never suffering symptoms to suffering similar symptoms, when assessing the basis on which the Claimant should recover damages. As such the initial trial judge when accepting the Defendants view had incorrectly failed to take account of the concessions made by the Defendants’ expert in cross examination.

The Court of Appeal heard representations from both parties and held that the Judge at first instance had failed to apply the correct test and should when assessing future loss reflect the risk and chances of a future event happening as established in Mallet v McGonagall 1970 and to that extent the appeal Judges were with the Claimant. However the Court felt they could still uphold the Trial Judge's finding of two years by following an authority of Kenth v Heimdale Hotel Investments Limited [2001] EWCA Civ 1283 which held that one way of assessing risks and chances is to apply an acceleration which was an acknowledged broad brush approach. As such the Claimant received damages for a two year period.

COMMENT

This is undoubtedly a disappointing result for the Claimant who on the one hand succeeded on the legal issue before the Appeal Court yet then failed to recover any increase in damages as a result of the Judges upholding the finding on acceleration, whilst recognising the Norwich County Court wrongly applied the law. It is difficult to believe that had the Judge in Norwich at first instance correctly applied the law that he would have awarded the Claimant the same two year acceleration if he had factored in the various risks, which he failed to do when applying the test of balance of probabilities, which he should have done. As a result it is disappointing that the Court of Appeal, having found for the Claimant on the law, did not then allow what the Claimant argues would be more appropriate damages.

However the case demonstrates the importance of, when assessing future losses, considering all of the events that may or may not happen before a Court awards or solicitors agree damages. Whilst the acceleration approach of awarding damages for a period of 2, 3 or 10 years (as an example) may be correct and regularly applied this must be done on an analysis of the evidence and if appropriate an assessment of the future risks rather than because on the balance of probabilities it is found.

Inevitably whilst we were disappointed that the Claimant recovered no further damages, the case did prove a very important legal point. It also demonstrates that at a time when lawyers are challenged for the use of No Win No Fee agreements, if used properly they are a significant benefit to Claimants. Indeed it is likely that without a system which allows success fees in No Win No Fee agreements to be recovered this case may not have been advanced. It is therefore very disappointing that the current government are seeking to remove the recoverability of success fees which underpin the risks lawyers take in substantial cases such as the one under discussion.

If you wish to discuss this article or the current proposals to change the recoverability of success fee or discuss any possible claim please contact Mark Hambling mbh@rogers-norton.co.uk

22nd December 2011

Heights to Haircuts!!!

Mark Hambling, Partner, Law Society Accredited Personal Injury Lawyer and Association of Personal Injury Lawyers Senior Litigator, has recently concluded an interesting case which saw the Claimant make an interesting and enforced career change.

The Claimant worked as a scaffolder and suffered a significant head injury when struck by a falling metal scaffold sleeve. The facts, in the absence of the serious injury, could form the basis of a comedy sketch. The Claimant’s colleague was Polish and had a tendency to swear on site for no apparent reason, usually in Polish and therefore his language was generally ignored. However on the day in question he dropped a metal scaffold sleeve and rather than shouting "look out" he swore and was unfortunately ignored. Tragically the sleeve struck the Claimant on the head causing a fractured skull, soft tissue injuries to the spine and neurological symptoms such as problems with memory and learning.

The Claimant required surgery to elevate his depressed skull fracture and was in hospital remarkably for only 7 days before his discharge to be monitored by out patients.

The insurers of the scaffolding company admitted liability for the unsafe system of work which was used to raise the scaffold fittings to the construction. Despite the scaffold company entering liquidation during the litigation the claim was pursued against the company, who had relevant insurance, with permission of the Court.

The only issue to determine was the extent of injury caused by the accident, the value of that injury and the losses flowing from the injury. Medical evidence was necessary from a Neurologist, Neurosurgeon, Neuro Psychiatrist, and Plastic Surgeon. It was established that the Claimant had suffered a depressed fracture to the skull which had left a permanent cosmetic appearance. He had also suffered trauma to the brain which would again cause minor permanent problems with memory and learning as well as interaction. His soft tissue injuries to the spine which were caused by the compressive force of the metal sleeve healed over a two year period. However psychologically it was established that he could never work in construction again and would have to consider a change of career.

The Claimant had some pre accident experience as a hairdresser having trained with Nicky Clarke, although he had given this up to train as a scaffolder and earn a higher salary. The Claimant therefore returned to the hairdressing trade once he was fit to work. He was however starting from scratch again and despite efforts in some top London and regional salons and a summer of experience working on fashion shoots and parades in Ibiza he was struggling to hold down a position and had lost several positions.

Our involvement was to present a proveable argument comparing his potential earnings as a hairdresser and scaffolder, analysing when the two would, if ever, reach parity. After numerous statements from past and present employers and a detailed review of the hairdressing opportunities as well as considering how the Claimant would have faired but for the accident as a scaffolder in one of the worst recessions ever, the claim settled at a round table meeting with the Defendants at a figure substantially ahead of £200,000.

COMMENT
This case raised all the issues I could expect. Whilst liability was resolved in the Claimant’s favour a detailed knowledge of the Health & Safety at Work legislation was required to prove this. The case had the added complication of an insolvent Defendant which required a successful application to the Court to allow the case to proceed.

In relation to the injuries a thorough understanding of the medical case was needed to enable the right experts to be selected from our panel of the best available. What was then required was the time and experience to investigate the pre and post accident work options to present a case on value to support the past and future loss of earning as well as providing for the future risks, in particular the inability to return to scaffolding if he never achieves parity of earnings as a hairdresser.

The case highlights the need to use an experienced Personal Injury Lawyer to pursue your claim if you unfortunately suffer an injury. There are a variety of potential claims within each case which will require consideration and the lawyer instructed must investigate these thoroughly to ensure the Claimant achieves the right level of compensation.

If you wish to discuss this article or have a potential case that you wish to discuss please contact us on our enquiry form on our website at http://www.rogers-norton.co.uk/make-a-claim.htm we would be delighted to speak to you.

Alternatively, for further information please contact the Personal Injury Department at pi@rogers-norton.co.uk or Mark Hambling on 01603 675637 or email mbh@rogers-norton.co.uk.

Interesting updates in employment law

The Government yesterday announced the two key changes that they intend to introduce to encourage employers to recruit new staff with effect from April 2012. Firstly, the intention is to increase the period of continuous service required to bring an unfair dismissal claim from one to two years. Secondly, fees are to be introduced for the issuing of Tribunal claims. Both of these have been widely predicted for several months.

Whether either of these changes is likely to have the desired effect is debatable according to the Firm’s Head of Employment Law, Phil Kerridge.

“Based on previous statistics, the increase of the period from one to two years will effect about 5% of cases, so on the face of it that reduction is not as significant as you might expect.

Set against that, it has to be remembered that the increase will have no bearing on discrimination cases, which will continue to have no requirements for any continuity of service. Bearing in mind the recent abolition of the default retirement age, I can see a significant increase in age discrimination claims, so I am not convinced that what has been proposed will be sufficient to stimulate employers into recruiting new staff.

Whether the payment of a fee will deter potential claimants remains to be seen, although it should certainly discourage the more speculative claims.”

If you wish to discuss the proposed changes or any other employment law issue, please contact Phil on 01603 675603 or at pnk@ogers-norton.co.uk. If you wish to subscribe to Phil’s monthly newsletter, please click here.

Some simple questions answered

Mark Hambling, Partner at Rogers & Norton has been asked to write a Personal Injury Column for the North Norfolk Post which will be published shortly. The information in the column is certainly helpful to any client considering pursuing a personal injury claim and therefore I have posted below a copy of the information provided.


In a climate when insurers are keen to refer cases to their Panel Solicitors in exchange for sometimes substantial referral fees, it is not surprising that the client seems to be guided through their personal injury claim with very little advice as to the legal requirements for a successful Personal Injury claim. Mark Hambling, Partner in Rogers & Norton’s personal injury department sets out briefly below the legal requirements for a successful claim.

Do I have to prove someone was to blame to pursue a claim?

In most claims the requirement to prove fault is necessary to succeed. There are some very limited occasions when a claim can succeed without proving negligence on the part of the party against whom you are claiming but these are very limited. However, in most cases the parties seeking to prove the claim must show that the person against whom they are claiming owed them a duty of care which can be in Common Law, for example the duty of road users to ensure the safety of fellow road users or in statute, for example the duty of an employer to ensure that an employee is safe at work. It is then necessary to show that that duty of care has been breached which will usually require evidence.

Do I have to show that the breach of duty has caused my injury?

Yes, it is not enough to show blame and no injury or indeed an injury but no breach of duty. For example if an employer asked an employee to sit on a defective chair this may give rise to a breach of duty but if the employees back ache arises from the employer partaking in sport and not him sitting on the chair, the claim will not succeed. Equally, an injury alone caused through work without proving a breach of duty will not succeed.

What compensation can I pursue?

An award in compensation is generally split in to three component parts. The first aspect reflects the pain, suffering and loss of amenity that the injured party has sustained. This will usually be proven by a medical report to establish the injury, its link to the accident and the extent of the injury. In the absence of agreement a Court will assess this award which is known as general damages. In addition you will recover the items of expense that it can be shown have been caused by the injury and these are known as items of special damage. Finally, the award may attract interest at rates set by the Court.

How do I pay for pursuing a claim?

As the law stands currently there is provision in the event of a successful claim for your costs to be recovered in addition to your damages. Your solicitor may be advising you under legal expense insurance or under a No Win No Fee Agreement and it is usual for the solicitor to endeavour to recover all of his costs from the other party if the claim is successful. If the claim is unsuccessful and you have legal expense insurance generally the insurers will pay your costs. Under a No Win No Fee Agreement it is likely that the solicitor will not be paid for his time as the claim has not been successful. In successful cases we at Rogers & Norton provide clients with a guarantee that we will recover our costs from the other party in full, therefore you receive 100% of your damages.


Mark Hambling is a Partner specialising in matters of personal injury and clinical negligence. He is a Senior Litigator with the Association of Personal Injury Lawyers and an Accredited Specialist in personal injury with the Law Society. He can be contacted on 01603 675637 or mbh@rogers-norton.co.uk

Road Traffic Claims Process

I thought I would in this post shed some light on what happens if you have a road traffic accident in England or Wales.

Road traffic accident claims are the most common cause of Personal Injury Compensation Claims and with over 30 million cars registered on the UK’s roads this is perhaps not surprising.

Since the 30th April 2010 a new process relating to low cost road traffic accident claims was introduced by the Ministry of Justice. This process applies to all road traffic accident claims where the value of the claim is deemed to be between £1,000 - £10,000.

The purpose was to create a streamlined procedure where information that is required to be passed between the Claimant’s Solicitors and the Defendant’s Insurers is standardised. The process operates via a secure electronic exchange and sets specific time scales which means that a decision on liability is produced much quicker in these cases and hopefully allowing the Claimant’s clam to be settled quicker than was previously the case.

An example is that previously Insurers would have some 90 days in which to respond with the position regarding liability under the new regulations this timeframe is reduced to some 15 days!

If liability for the claim is denied or no response received within the 15 days timescale then the matter falls outside of the new process and resorts to the traditional Personal Injury Protocol. This in itself is not a problem as the Claimant has tried to use the accelerated procedure and cannot therefore later be criticised.

So in short the new process effectively works on the basis of a 3 stage procedure:-

Stage 1 – Claims Notification Form completed by Claimant’s Solicitor and sent to Defendant’s Insurers giving them 15 working days in which to respond on liability.

Stage 2 – Following acceptance of liability, medical evidence is obtained together with details of out of pocket expenses which are then submitted to the Defendant’s Insurers for consideration and hopefully acceptance or agreement by negotiation.

Stage 3 – In the event that the matter does not conclude at stage 2 then the claim proceeds to a quantum hearing before the Court for settlement of the claim to be decided.

If you have been involved in such an accident as a driver, passenger, pedestrian, cyclist or motorcyclist then please contact us on our enquiry form on our website at http://www.rogers-norton.co.uk/make-a-claim.htm or the Personal Injury Department at pi@rogers-norton.co.uk

£40 for your Medical Report!!!

Following my earlier posting on referral arrangements I received an email from a medical agency this morning offering their services which further clarifies the web which exists in relation to referral arrangements. Perhaps I ought to explain that it is possible when obtaining medical evidence in a personal injury claim to instruct an agency to select from a panel of experts the person to instruct and arrange the appointment. The alternative and a procedure I generally follow is to choose the expert and place the instruction direct which is my desired approach.

However the email offered me an incentive of £40 per case by this particular agency to use their services which, whilst appreciated, is not acceptable and certainly not in my client’s best interests.

I have to ask is this another example of money being made out of the client’s misfortune and that does seem to be the case. In this case the solicitor is receiving £40, dare I say to perhaps offset against the referral fee he has already paid, which I feel must raise the question of whether the solicitor is acting in the client’s best interests.

If an instruction is placed through an agency the question must be asked whether the best expert is being used as generally and from experience I find the best experts need not be on an agency’s panel, as they will receive the cases as they are known to the experienced instructing solicitor, such as myself.

I believe this is a further example of the client’s best interests being served by their chosen solicitor and not necessarily the solicitor on the panel who writes the biggest cheque and who then tries to recoup some of that cost through receiving referral fees and/or thank you payments themselves.

If you have a case that you wish to discuss please contact us on our enquiry form on our website at http://www.rogers-norton.co.uk/make-a-claim.htm we would be delighted to speak to you.

Alternatively, for further information please contact the Personal Injury Department at pi@rogers-norton.co.uk

Referral Fees – The truth is out

Over the last week or so the Government have been concerned by the exchanging of referral fees between Solicitors with Claims Management Companies, Accident Recovery Companies and indeed Motor Insurers. Insurers also now seem to be confessing more about the true nature of their arrangements.

It is very surprising that the Government now only claim to have been concerned as the practice of referral fees has been occurring for many years following a change in the Law Society Rules which permitted the payment of a fee for the referral of work.

The change in the rules was accompanied with safeguards that were intended to ensure that the client was no worse off if a referral fee was paid. However at Rogers & Norton we have remained concerned by this and it is for that reason that we have taken a view as part of our business management and ongoing development plans that we will not entertain referral fees in personal injury and clinical negligence cases.

Although currently not illegal to pay a referral fee, providing a declaration of that fee is made to the client, our concern has always been how that referral fee is budgeted for when deciding how the work will be undertaken. Quite simply, if an insurer is being paid by a Solicitor £800.00 for a personal injury referral and that Solicitor only recovers £1,200.00 for his fees on that case, before any expenses of undertaking the work are accounted for the Solicitor is only going to receive a maximum of £400.00 for his fees. In our opinion the only way that the work can then be done is by automating the complete process and providing the client with a Call Centre or an On Line means of noting progress on their case. The expertise is stripped out from the case, the client is not given the best representation and ultimately the client may suffer.

It is for these reasons that Rogers & Norton have decided that referral fees are not an appropriate means of obtaining new work as they are quite simply not in the best interest of their client.

Why are Rogers & Norton different? Quite simply we provide the client with an expert personal injury lawyer who is their main point of contact throughout the case. Whilst we will communicate by email and use all means of electronic communication we are also at the end of a phone line and sitting behind our desk at the office to see the client and answer the questions that they may have. Importantly because we are not concerned by the payment of a high referral fee we can take time to fully assess the claim and ensure that each case is appropriately investigated and areas of injury are not missed because of time constraints or as a result of inexperienced lawyers looking at the case.

We at Rogers & Norton sincerely hope that the referral fee system will now come under more scrutiny and that clients will finally see the true cost to them of their case being referred to an insurer’s chosen solicitor who is often the chosen solicitor because they are prepared to draw the biggest cheque!

If you have a case that you wish to discuss please contact us on our enquiry form on our website at http://www.rogers-norton.co.uk/make-a-claim.htm we would be delighted to speak to you.

Alternatively, for further information please contact the Personal Injury Department at pi@rogers-norton.co.uk

Panel Solicitor or my own Solicitor, do I have a choice?

The simple answer is yes but on too many occasions the client seem unaware of their options and become involved in a retainer with a Panel Solicitor which may not be in their best interests.
As I mentioned in my previous posting the insurer will undoubtedly have an interest in recommending their Panel Solicitor and this may not be in your best interest often as a result of the quality of the representation that you receive.

I have personally seen several cases where I have had to take them over because the Panel Solicitor either has not fully investigated the claim, has reached the wrong decision on liability, has not obtained the right medical evidence or at worst has under settled the claim.

In most personal injury cases you will get one bite of the cherry to get it right and it is therefore necessary to ensure that the claim is fully investigated, fully documented and appropriately valued before settlement is made on a full and final basis.

I fully advocate that the client should be provided complete freedom of choice in terms of the solicitor that they wish to use and it is often quite possible for the client to have that freedom of choice and to still use the benefit of the insurance cover that they may have for their legal fees. Just let us as the solicitors deal with the insurer. To do that, we usually need to be contacted early and it is therefore my recommendation to all clients that before you follow the insurer’s recommendations just think about why they are making the recommendation and is it in your best interest. If you are not sure speak to another solicitor first.

At Rogers & Norton we will always have an initial meeting with the client without cost and without obligation. We have a vast array of funding options to enable a claim to be advanced and that includes using the client’s own legal expense insurance. If you have a case that you wish to discuss please contact us on the enquiry form on our website at http://www.rogers-norton.co.uk/make-a-claim.htm, we would be delighted to speak to you.

For more information please contact the Personal Injury Department at pi@rogers-norton.co.uk

Welcome to the Rogers & Norton Personal Injury Blog

Welcome to the Rogers & Norton Personal Injury and Clinical Negligence Blog. We are an expert personal injury practice based in Norwich, Norfolk and act for clients both locally and nationally.

As a practice with a team of solicitors and Legal Executives we are recognised nationally by both the Law Society and the Association of Personal Injury Lawyers. As expert lawyers in our field we have decided that it is time to provide our clients and prospective clients with a means of seeking impartial advice on matters of personal injury and clinical negligence through this Blog.

Our aim is to provide topical and relevant comment on areas of personal injury law and to consider both matters in which we are involved and cases reported nationally in the press so as to provide understandable and unbiased advice to clients who may have potential claims.

Our aim is to provide through the Blog a means of discussing potential claims with potential clients at no cost to you and without any obligation and therefore we would be delighted if you feel able to engage in our Blog by asking questions which will be answered by one of our expert personal injury / clinical negligence lawyers once received.

The Blog is linked to our Facebook and Twitter accounts and please feel free to follow us (can we put a link here to allow people to follow) to receive notification of future updates.

We may even try and star in our own high definition video updates on the law so watch this space.

In the meantime hopefully you will find the information topical, relevant and importantly informative to your needs.

If you need any assistance please contact one of our personal injury experts by clicking here http://www.rogers-norton.co.uk/accidents-and-personal-injury.htm.