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.