Serious Injury Claims – What You Should Consider

If you or your loved one have suffered a serious injury (also sometimes referred to as a “catastrophic injury”), not only would that have been devastating, but it will also be life changing. From an accident at work, to a road traffic collision, there is no way of planning ahead for a serious injury. Whilst compensation cannot change what has happened, it can be vital in helping you get on with your life and in helping you obtain the care and assistance, and rehabilitation that you may require.

These serious injuries will have an immediate and enduring effect on you. We understand the short, and long term impact a major injury can have on an individual and their family, and therefore, we work with specialists to establish quickly how the injury has affected you and use our experience and expertise to win serious injury claims on behalf of our clients.

Our expertise and understanding of the complex legal system means that we can identify very early on in a claim what is going to be involved in a serious injury compensation claim. Importantly, we also understand and the significance that bringing a claim has for the injured party and their family.

Therefore, not only do we consider the monetary compensation but also other factors such as short to long term physical, social and financial impact. Our objective is to build a case for compensation that considers the long-term picture, and other factors such as potential home adaptations, private medical care, immediate care needs, and rehabilitation support.

 

There are other important factors we keep in mind such as:

A personal approach: We focus on giving a personal approach from the outset. We will visit you at the hospital, home or even at a rehabilitation centre. We prefer seeing our clients face to face which we appreciate enables a relationship to be built, especially when you are going through a traumatic time.

The claims process: We assess your claim from the outset to identify who is responsible for your accident and we will ensure all the relevant evidence is gathered in support of your claim. When handling a serious injury claim, we always work hard to ensure a dedicated and experienced case manager is appointed. This case manager will assess your rehabilitation needs up to the conclusion of your legal claim, and beyond where necessary.

Expertise: We have acted successfully to secure compensation involving (but are not limited) to:

  • Serious neurological conditions leaving injured clients with disability, paralysis;
  • Amputations;
  • Loss of limbs;
  • Severe head or brain injuries;
  • Spinal cord injury.

Interim payments: We aim to secure an initial interim payment as soon as possible after the start of your claim, and then at intervals throughout the claim before the full and final settlement payment is made. We know and appreciate these payments help to alleviate the financial burden especially when you are unable to work, or in circumstances where private treatment may be necessary.

When making a serious injury claim, it is important that you find a solicitor with extensive experience and knowledge of the complex process involved in this type of claim. This includes a sound understanding of the Rehabilitation Code, the importance of assessing the current, and potential future needs, and dealing with other experts when running a successful claim.

If you have been injured in a way which was not your fault, and your injuries are extreme, please contact our Personal Injury Team. Our Team is made up of specialist Personal Injury Lawyers who have many years of specialist experience in dealing with such cases.

How does honesty (or lack of it) affect an injury claim?

The issue of fundamental dishonesty continues to be raised in personal injury and clinical negligence claims.  Increasingly we see defendant insurers and the NHS seeking to try to establish some dishonesty to either achieve the dismissal of the claim altogether or to secure the recovery of some costs.  This provision is known as section 57 of the Criminal Justice and Courts Act 2015 (“S57”).

Although an explanation of fundamental dishonesty is set out in the statute it is a movable feast in case law.  As more defendants seek to raise the issue, so cases become more varied.  Each case is very much decided on its own merits but there are some common themes. The consequences can vary from costs and compensation penalties to imprisonment.

It is well known now that claimants’ solicitors should always advise clients of the possibility that the defendants may review or seek access to their social media posts, particularly where there are allegations of illnesses on holiday.  In the case of Lactatemia Shipping Company Limited v Sue & Others, the claimant allegedly fell ill on holiday due to food and/or drink consumed at a hotel.  This illness apparently was so severe as to ruin their holiday.  Once home, a claim was commenced.  The defence was supported by social media posts which included favourable comments about the hotel and the overall experience. It seemed to undermine the entire case. The claimants therefore discontinued the claim. The claimants were found to be fundamentally dishonest.  The claim of course had been discontinued but there was an application for costs.  There were some issues as to the solicitor’s role. It didn’t appear that checks on the client’s social media (which is a particular feature of travel sickness claims) had been undertaken and some documents appear to have been hidden or deleted.  An application for costs ultimately cost £37,000.

A recently reported case in the national newspapers of N K  v Hull NHS Trust indicated  problems in  a claim valued at £7.3 million. The claimant alleged significant mobility issues. The defendant relied on the fact that the claimant was taking a performing arts degree and there were surveillance video and social media posts on her feed indicating that she was moving without difficulty.

In the case of A P recently the claimant alleged mobility issues whilst his Twitter account presented an overall impression of his running fitness and timings.  He was subject to surveillance evidence, and he was found to be fundamentally dishonest.  All damages to which he was entitled were set off against the liability to pay the defendant’s costs.

However not all dishonesty is equally important in determining whether a claimant is deemed to be fundamentally dishonest, a fact which is not always considered by defendants who seek to extend the ways in which this can be relied upon.

S 57 indicates that the claim is deemed to be fundamentally dishonest if the dishonesty goes to the root of either the whole claim or a substantial part of it.  The court considers there is a public interest in identifying false claims and a claimant can be found to be fundamentally dishonest if they have acted dishonestly and this has substantially affected the presentation of the case.   It does, however, have to be relevant to the issues in the case.

In a case that bucks the trend to find claimants fundamentally dishonest, in Cojanu v Essex Partnership University NHS Trust [2022] the trial judge’s findings of fundamental dishonesty were overturned on appeal.  The claimant had been the perpetrator of a crime which resulted in an injury which was negligently managed. He lied about the cause of his injuries and denied the crime. It appeared that the claimant had not been honest about how the injuries had arisen.

However, the appeal judge considered that the mechanism by which he received the injuries was irrelevant to the success in the clinical negligence claim.   He did not need to prove how he had become injured.

It was accepted that initially the claimant did not say anything about how the injuries arose and at a later time he lied about it to the court.  He was certainly being dishonest in relation to his crime.  However, the mechanism by which his finger was injured was not relevant to the negligence.

It was not the case that the claimant’s credibility was irrelevant – it most certainly was.  However, his dishonesty on that specific issue was not relevant to the evidence in a civil claim.  It did not affect the liability part of the trial because liability had been determined on expert evidence and no criticism could be made of that.

In overturning the judgement the judge made the following comments:-

“First all citizens are equally entitled to come before the court in civil claims.  Those with a long list of previous convictions and those without.  Some will have better creditability than others but this is not a credibility barrier… barring those with previous convictions from bringing civil actions.  ….. negligent defendants must take their victims as they find them and not all victims are angels. … the primary rationale for Section 57 is to stamp out fraudulent and dishonest claims not to bar unrepentant criminals from civil law.”

In short, this case confirms that the fundamental dishonesty has to be pertinent to the issues in the case, the presentation of the case and the value of the claim.  If it is not, the credibility of the claimant may still be affected.  It does not necessarily mean however that they have been fundamentally dishonest in relation to their civil claims.

The reality is that all claims where fundamental dishonesty is finally alleged, will be judged on their own merits, being the circumstances of the case and the claimant’s account.  Solicitors can be held liable if they have not completed proper checks on their clients but ultimately for claimants this can be a very costly exercise if they are found to be fundamentally dishonest.  The increase in allegations of fundamental dishonesty is significant anecdotally.  Certainly, as a clinical negligence practitioner I am more aware of the possibility than previously.

All claimants should be advised of these issues at the start of a claim and on an ongoing basis.   In truth it is a tiny number of claimants who knowingly do not present an accurate view. However, there is a continued attempt by defendants to aggressively pursue these issues and to extend the number of cases and circumstances by which people can be deemed to be fundamentally dishonest.  Claimants and their lawyers have been warned.

A case of the very rare condition Macrophage Activation Syndrome

It is often difficult to identify and diagnose a rare medical condition in a patient and make sure they receive appropriate treatment. It is sometimes the case that a number of working diagnoses have to be made and all of them treated, to cover all bases, until the correct diagnosis is eventually established. Establishing that correct diagnosis and ensuring the right treatment path often requires the involvement of appropriate medical specialists early on, otherwise a wrong diagnosis or incorrect treatment may prove to be disastrous. This is exactly what happened with a clinical negligence case of mine involving an incredibly rare condition. The diagnosis was understandably difficult and, whilst the treating team rightly tried to cover all bases, the correct diagnosis remained elusive, probably because no appropriate specialist was involved until too late in the day. As such, although the initial treatment that was implemented was appropriate and, indeed, was extremely effective, there was a subsequent simple fatal error in failing to treat the patient sufficiently aggressively and for sufficient duration with a key treatment. This undertreatment led to the death of a young man in the prime of his life. Had an appropriate specialist been involved early on, it is likely this very sad outcome would have been avoided.

 

The History

The claim centred around the death of a young man in his early thirties (‘the deceased’). In early winter, he developed some general ‘flu-like symptoms of a sore throat, aching muscles (myalgia) and a high temperature of 38.0°C (pyrexia). He was no better three days later, so he began to take some oral Penicillin V antibiotics given to him by his GP. He almost immediately developed a rash over his trunk and chest and he also developed joint pains (arthralgia). The next day, his GP diagnosed a viral infection. A further two days later and he was still no better, so the GP took some bloods. Just over a week from the initial symptoms, he was still no better and so he attended A&E. The bloods taken by the GP were on the hospital system: his white cell count (WCC) was at the very upper limit of normal (10.6; normal <11) and he had a high neutrophil count (neutrophilia) and a low lymphocyte count (lymphopenia), possibly suggesting an infection. The Casualty doctor diagnosed ‘flu and/or a penicillin allergy and stopped the penicillin.

However, over the next few days, the deceased deteriorated to the point that he could not get out of bed. His GP referred him to the Acute Medical Unit at his local District General Hospital. The clerking history noted the history of a ‘flu-like illness, rash, arthralgia, sore throat, temperature and recent rapid weight loss. His temperature on admission was high at 38.4°C. On investigation, his WCC was by now very elevated at 24.2, again with a neutrophilia. He also had deranged liver function tests (LFTs), with an AST (aspartate transaminase) of 62 (normal 10-35) and an ALP (alkaline phosphatase) of 227 (normal 30-130). He had a very high C-reactive protein (CRP) of 281 (normal <5). The working diagnosis was an infective process, such as Streptococcus or Mycoplasma, or possibly an antibiotic allergy. The deceased was treated with the intravenous steroid hydrocortisone 200mg three times daily (tds) and the intravenous antibiotics clarithromycin and teicoplanin. Within 3½ hours of his first dose of iv hydrocortisone, his temperature had dropped to 35.4°C.

The next day (Day 1 after admission) brought a very rapid response. The deceased was feeling much better and his temperature had fallen to normal. An abdominal ultrasound scan revealed a slightly enlarged spleen. By the subsequent day (Day 2), the CRP had fallen to 93 but the WCC had increased yet further to 28.2. Another day on (Day 3) and the CRP had fallen further to 57 and the WCC now also began to fall at 25.2. His temperature remained normal.

Such was the rapid response to treatment, a locum consultant respiratory physician on her ward round diagnosed an allergy to penicillin and ordered a rapid reduction of the high dose intravenous steroids and replacement with the oral steroid prednisolone 20mg once a day (od). Accordingly, on Day 4, only a single dose of iv hydrocortisone was given and the following day (Day 5) the hydrocortisone was stopped and the lower dose of oral prednisolone was started.

However, the next day (Day 6) the deceased reported that he had begun to feel unwell again. His CRP had started to climb at 80. His blood film showed immature white cell precursors (usually a marker of infection or inflammation). His rash had disappeared but there remained concern about Scarlet Fever. There was a note about possible discharge in two days. He continued his reducing oral steroids such that a further day later (Day 7) he was taking only 10mg oral prednisolone od. He was seen by an Infectious Disease consultant, who added in metronidazole to the teicoplanin because of concern about a retropharyngeal abscess. The deceased’s CRP increased to 133, platelets increased to 538 (normal <450) and temperature increased to 38.6°C. Matters continued to worsen: by the next day (Day 8), CRP was 152 and temperature in the evening was 41.1°C; the deceased felt absolutely terrible. The working diagnosis remained as Scarlet Fever.

Another day on (Day 9) and the deceased’s CRP had increased to 327, his WCC was 30.4 with a high neutrophilia (29.8) and he still had a very high temperature of 40.3°C. It was apparent that he was by now developing “shock”, with a falling blood pressure and rising pulse and his oxygen saturations were also falling. The Critical Care Outreach Team visited him on the ward and escalated him to the High Dependency Unit (HDU). He was only on 5mg oral prednisolone. He was admitted to HDU and a central line inserted. His renal function began rapidly to deteriorate.

On Day 10 post-admission, the deceased’s blood tests continued to deteriorate. A ferritin was >10,000. A CT chest was consistent with Adult Respiratory Distress Syndrome (ARDS). Eventually, a consultant rheumatologist was asked to review the deceased, with a haematologist, and they concluded that there was a good chance of the diagnosis being Haemophagocytic Lympho-Histiocytosis (HLH) probably secondary to Adult Onset Still’s Disease (AOSD). The rheumatologist prescribed 1g iv methylprednisolone. A lumbar puncture was normal. The following day, Day 11, the deceased had a bone marrow biopsy which revealed a marrow that was failing with a 3-cell lineage relative cytopenia (reduction in all cell lines). The trephine was indeed consistent with HLH. The deceased continued to deteriorate despite the treatment with iv methylprednisolone and organ support. Such treatment was too little too late and he arrested and, despite resuscitation attempts, died on Day 12, witnessed by his partner.

 

The Medical Background

Adult Onset Still’s Disease

Epidemiology: Adult Onset Still’s Disease (AOSD) is a rare inflammatory arthritis. Still’s Disease is Juvenile Chronic Arthritis and AOSD is its adult form, although it is most common in young adults aged under 35 years, as in this case.

Aetiology: Its cause is unknown but it is thought to be usually due to either genetic and/or an infectious cause e.g. Epstein Barr Virus (EBV), Parvovirus B19, Coxsackie virus, although many other infectious agents have been implicated.

Pathology: The underlying pathological mechanisms of disease are not properly understood.

Clinical and diagnostic: Criteria known as the Yamaguchi criteria are still widely accepted as being the primary diagnostic criteria. Yamaguchi identified “major”, “minor” and “exclusion” criteria, with the requirement for a diagnosis of a minimum of five criteria and at least two of them being major. The major criteria are: arthralgia >2 weeks; fever >39°C and intermittent >1 week; maculopapular non-pruritic rash; WCC >10,000 with >80% granulocytosis. The minor criteria are: sore throat; lymphadenopathy and/or splenomegaly; abnormal liver function tests; rheumatoid factor and anti-nuclear antibody (ANA) negative. The exclusion criteria are: infection (including sepsis); EBV infection; malignancy; and inflammatory disease. The deceased had six, possibly seven, criteria, with three being major, so he fulfilled the Yamaguchi criteria from relatively early on in his history. It is, however, in essence, a diagnosis of exclusion.

Investigations: The typical investigations will include a high WCC, CRP and ESR (Erythrocyte Sedimentation Rate), abnormal LFTs and a very high serum ferritin, often>3,000 (normal <300), indicative of a hyperacute inflammatory process.

Treatment: The treatment includes non-steroidal anti-inflammatory drugs (NSAIDs) and/or immune suppressants: high dose steroids are the mainstay of management. It is critical to monitor regularly during treatment and taper the steroids slowly once remission has been achieved.

Natural history and prognosis: There are three forms of the disease: (a) monocyclic: a single, acute, severe flare of the disease with complete remission with treatment (which is what the deceased had) and a very good prognosis; (b) polycyclic: intermittent, recurrent flares with periods of remission of 2 weeks to 2 years; and (c) chronic: which is the articular rather than systemic form of the disease, and this is the most common form.

 

Haemophagocytic Lymphohistiocytosis (HLH)

Epidemiology: HLH is an incredibly rare “hyper-inflammatory syndrome” and an uncommon complication of AOSD.

Aetiology: It exists in a primary familial form (about 25% of cases) or a secondary reactive form due to autoimmune diseases, infections or malignancy. HLH due to AOSD is known as Macrophage Activation Syndrome (MAS). MAS is what the deceased had.

Pathology: HLH’s hallmark is the presence of autoimmune hyperactivity, such that macrophages and histiocytes (the body’s immune cell “scavengers”) auto-digest the reticuloendothelial system (known as macrophagocytosis and histiophagocytosis respectively), including blood and immune cells and tissues such as bone marrow, liver and lymph nodes.

Clinical: HLH presents with hyperpyrexia, hepatosplenomegaly, cytopenia in 2-3 cell lines in the peripheral blood, an extremely elevated ferritin, coagulopathy/disseminated intravascular coagulation (DIC) and neurological abnormalities.

Diagnosis: The diagnosis is made essentially by bone marrow biopsy showing increased macrophages and lymphocytes with macrophagocytosis and histiophagocytosis.

Investigations: As with AOSD, there are high inflammatory markers (e.g. WCC, CRP, etc.). Interestingly, there is usually a low ESR in MAS (although it was not performed in this case). There are abnormal LFTs and a very high serum ferritin, often>3,000 (normal <300). Of the more unusual tests, HLH shows low Natural Killer (NK) cells, high triglycerides and high CD25.

Natural history: HLH has a very poor prognosis generally and it is reported that c. 40% of MAS patients die (with a higher rate for those on ITU), although the data is limited because of the very low numbers of patients. To avoid mortality, it is imperative that MAS is detected and treated early and aggressively.

Treatment: Treatment is generally supportive. Immune suppressants such as methylprednisolone are the mainstay to try to reduce disease activity, but also cyclosporin. The Interleukin-1 receptor antagonist, Anakinra, has shown promise and there are many other disease activity modulation-related treatments that have been tried with varying degrees of success.

 

The legal claim

The liability case

It was claimed that there was, in breach of duty, an unacceptable delay in the defendant hospital recognising that the deceased’s deterioration was due to the rapid reduction in steroid dose by about Day 7 post-admission and, accordingly, in recognising that the deceased was likely suffering from an immune-related condition i.e. AOSD. It was further claimed that there was, in breach of duty, a consequential delay in managing the deceased with appropriate immunosuppression treatment for his immune-related illness, with such delay resulting in his death. In addition, it was claimed that, but for the breaches of duty, with appropriate treatment, the deceased would have: (a) survived intact; (b) been able to return to part-time work within two months of discharge and to full-time work after a further month; (c) been treated with steroids for a year but without any complications; and, (d) been cured of his MAS with no adverse effects on either his long-term morbidity or mortality.

 

Quantum case

With respect to quantum, the claim was based on the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the deceased’s Estate, the Fatal Accidents Act 1976 on behalf of the deceased’s dependents; and in common law for the psychiatric injury for his common law wife and partner. The deceased and his partner were living together with their young family and both were working up until the deceased’s death but the deceased was the primary earner.

 

Procedure

At first blush, the claim appeared very difficult. Not only was the underlying condition of HLH incredibly rare but some brief investigations into it revealed that it largely had a very poor prognosis. However, amazingly coincidentally, I had been involved with a case when I had been a medical SHO in the distant past and so knew a little about the condition; I had also done an SHO rheumatology rotation and had treated a number of cases of AOSD during that time, so was familiar with that condition, too. I was aware of the potential for a good response to high-dose steroids and the need for rapid, aggressive treatment, and a brief review of the chronology in the case ascertained the main likely criticism of the rapid steroid reduction. In investigating the claim there were the usual issues with missing medical records from the set supplied by the Trust, which took time to sort out. However, an expert rheumatologist was eventually instructed to report and he was critical along the lines set out above and these criticisms were reproduced in the Letter of Claim. He was also critical that no rheumatologist had been involved much earlier in the case. There were various non-rheumatological concerns but these were not investigated pending the outcome of the response to the rheumatological allegations.

A Letter of Claim was served on the Defendant Trust and a Letter of Response served by the Trust’s solicitors 9 months later admitted the breach of duty with respect to the rapid steroid reduction and the failure then to notice the consequential rapid deterioration post-reduction; causation of death was subsequently admitted a further three months later. However, the deceased’s hypothetical morbidity and mortality was not admitted. Following further expert rheumatological opinion on the point being obtained and subsequent correspondence between the parties, a full liability admission was made a further 13 months later, in essence on the basis referred to above, that the deceased would have made a full recovery with no long-term impact on either his morbidity or mortality, but with some minor timing differences with respect to returning to work.

The psychiatric element of the claim was also investigated with the claimant being a secondary victim having witnessed the horrific events surrounding the resuscitation of her long-term partner. It was apparent she suffered from resulting PTSD and depression and a claim was included. This was not formally admitted by the Trust but was included in the settlement negotiations and taken into account in the eventual apportionment of the damages.

 

Settlement

The parties attended mediation using NHS Resolution’s mediation scheme at which the action was compromised in the sum of £950,000. This was subsequently approved by the High Court and appropriate apportionment to the deceased’s partner and children was made.

 

Conclusion

The case was obviously very sad but substantively also very interesting and complex. Medically, it involved two rare conditions, one incredibly so, which presented a significant challenge, but more so given that MAS generally has a very poor prognosis. However, ultimately, the medical issues upon which the case turned were relatively simple: too rapid a reduction of intravenous steroid in a patient with an acute inflammatory condition and a delay in recognising the subsequent deterioration, which likely would have been avoided with involvement of the appropriate specialists early on in the management. It is hoped that such simple mistakes will be avoided in the future and that the Trust will learn from the fatal errors made in this case.

Cyclists and Pedestrians – New Highway Code Rules

New Highway Code Rules Regarding Cyclists and Pedestrians

The Highway Code has recently been updated to include new rules which introduce a new hierarchy of road users, meaning that cyclists and pedestrians now have greater protection when using the roads. The hierarchy puts road users who are most at risk at the top. However, this has not been as widely publicised as it perhaps needs to be and there are still a lot of road users who are not as au fait with the new rules as they should be. This could in turn lead to an increase in road traffic collisions, as motor vehicle drivers start to get to grips with the new rules offering further protection to cyclists and pedestrians.

The new rules came into effect on the 29 January 2022, but not with the sort of fanfare that would have been required to bring these changes to the forefront of the minds of all road users. Three of the key changes, referred to as Rules H1, H2 and H3 are as follows:-

 

Rule H1 – It is important that ALL road users are aware of The Highway Code, are considerate to other road users and understand their responsibility for the safety of others.

Everyone suffers when road collisions occur, whether they are physically injured or not. But those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others. This principle applies most strongly to drivers of large goods and passenger vehicles, vans/minibuses, cars/taxis and motorcycles.

Cyclists, horse riders and drivers of horse drawn vehicles likewise have a responsibility to reduce danger to pedestrians.

None of this detracts from the responsibility of ALL road users, including pedestrians, cyclists and horse riders, to have regard for their own and other road users’ safety.

Always remember that the people you encounter may have impaired sight, hearing or mobility and that this may not be obvious.

 

Rule H2 – Rule for drivers, motorcyclists, horse drawn vehicles, horse riders and cyclists

At a junction you should give way to pedestrians crossing or waiting to cross a road into which or from which you are turning.

You MUST give way to pedestrians on a zebra crossing, and to pedestrians and cyclists on a parallel crossing (see Rule 195).

Pedestrians have priority when on a zebra crossing, on a parallel crossing or at light-controlled crossings when they have a green signal.

You should give way to pedestrians waiting to cross a zebra crossing, and to pedestrians and cyclists waiting to cross a parallel crossing.

Horse riders should also give way to pedestrians on a zebra crossing, and to pedestrians and cyclists on a parallel crossing.

Cyclists should give way to pedestrians on shared use cycle tracks and to horse riders on bridleways.

Only pedestrians may use the pavement. Pedestrians include wheelchair and mobility scooter users.

Pedestrians may use any part of the road and use cycle tracks as well as the pavement, unless there are signs prohibiting pedestrians.

 

Rule H3 – Rule for drivers and motorcyclists

You should not cut across cyclists, horse riders or horse drawn vehicles going ahead when you are turning into or out of a junction or changing direction or lane, just as you would not turn across the path of another motor vehicle. This applies whether they are using a cycle lane, a cycle track, or riding ahead on the road and you should give way to them.

Do not turn at a junction if to do so would cause the cyclist, horse rider or horse drawn vehicle going straight ahead to stop or swerve.

You should stop and wait for a safe gap in the flow of cyclists if necessary. This includes when cyclists are:

  • approaching, passing or moving off from a junction
  • moving past or waiting alongside stationary or slow-moving traffic
  • travelling around a roundabout 

The overriding message here remains that all road users are required to proceed with extreme caution in respect of their awareness of and duty of care towards all other road users. However, in this update to the rules, vehicles and even cyclists now must give way to any pedestrian who is either crossing or waiting to cross a road into which or from which the vehicle or cyclist is turning. This is a significant change to the rules, which could very well see an increase in accidents in which the vehicle driver or cyclist is deemed liable. I have dealt with many claims for clients who were crossing a road when they were run over and in which there have been disputes on liability, but in light of this new rule, we should now see less and less cases of liability being contested in such cases, as this particular requirement is weighted so heavily in favour of the pedestrian.

By the same token, I have dealt with many claims for cyclists, motorcyclists and other car drivers who have been badly injured when a car turning into or out of a junction has turned right across their path, giving them no chance to avoid a collision. With the introduction of Rule H3, there is once again a far greater onus on the road user performing the turn to only do so when it is completely safe. This will no doubt continue to be a factor which will be determined on the basis of the evidence on a case-by-case basis, as what one person deems to be a safe gap in the traffic may not be deemed safe by another. However, there is now a greater duty on road users to keep this in mind when making a turn, with the rules once again being weighted more in favour of the more vulnerable.

One potential issue I foresee is where a driver slows down and then stops to let a pedestrian cross a road that he or she is turning into, for example, but the driver behind that car is not paying sufficient attention and drives into the rear of the turning but stationary car. Ultimately, primary liability will always rest with the second car, but until ALL road users become completely familiar with this particular rule, I can see this being a fairly common type of accident, as drivers have previously always had right of way when making a turn, with pedestrians usually having to wait until it is safe for them to cross.

There are also some further new rules regarding cyclists which could potentially cause more problems than solve them. For example, cyclists are now able to ride in the centre of their lane on quieter roads, in slower-moving traffic and at the approach to junctions or road narrowings and they are now able to ride at a distance of at least half a metre from the kerb on busier roads where there are vehicles travelling at faster speeds than they are. I can certainly see situations whereby impatient drivers looking to get past these cyclists but being left with less room to do so safely still overtake the cyclist and in doing so, encroach even further into the opposite lane of traffic.

In summary, these rules have been introduced with a view to affording more protection to the most vulnerable of road users. However, as with any new rules, it will take some time for everyone to become completely familiar with them and in the intervening period, we could well see an increase in accidents befalling these most vulnerable of road users.

Injury claims and contempt of Court

I previously blogged on “Video Surveillance and Contempt of Court” and since, there has been another valuable lesson on how making intentionally exaggerated claims in injury cases may/will have severe consequences.

The recent case before Mr Justice Spencer; Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB), saw the Trust, in a clinical negligence claim, seeking Mr Atwal’s committal for contempt, where it was alleged that he had grossly exaggerated his injuries when bringing a claim.

The allegation was that Mr Atwal pursued a fraudulent claim for damages for clinical negligence by grossly exaggerating the continuing effect of comparatively minor injuries, sustained as long ago as 2008. The claim was pleaded in excess of £800,000 and included claims for future loss of earnings and future care.

The Trust succeeded in proving 14 allegations of contempt to the required criminal standard of proof.

Mr Justice Spencer helpfully set out at paragraphs 31-35 of his judgment the legal framework as follows:-

In this application for committal the Trust therefore alleges two forms of contempt, each of which is technically distinct in law, although in this case they overlap. First they allege interference, or attempted interference, with the due administration of justice by the defendant’s making false statements about his continuing disability to doctors and other experts who examined and interviewed him. That form of contempt requires, in this case, the Trust to prove that:

  1. the defendant deliberately set out to deceive the doctor or expert in question by falsely representing the extent of his continuing symptoms, either in the physical manner of his presentation or by lies told by the doctor or expert, or both;
  2. the defendant must have intended thereby to interfere with the administration of justice;
  3. the conduct complained of must have had a tendency to interfere with the administration of justice.

The second form of contempt alleged in this case derives from CPR 32.14(1) which provides:

“(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

 CPR part 22 provides that among the documents which must be verified by a statement of truth are a schedule of expenses and losses in a personal injury claim, and a witness statement. The contempts alleged in this case include examples of false statements in both such documents.

 In relation to this form of contempt it must be proved that:

  1.  the statement in question was false;
  2. the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respect;
  3. at the time it was made the maker of the statement:
    1. had no honest belief in the truth of the statement; and
    2. knew of its likelihood to interfere with the course of justice.

The standard of proof in respect of each of the elements of contempt is, of course, proof beyond reasonable doubt: the criminal standard of proof. The burden of proof is on the party who brings the proceedings for contempt, in this case the Trust.

It is important in a case such as this to concentrate on the nub of what is complained of at its most serious, rather than to consider and adjudicate on every detail of an oral or written statement which is alleged to have been false. The real thrust of this application for committal is that the defendant quite deliberately set out to deceive the doctors and other experts about the extent of his continuing disability, and that he verified by a statement of truth assertions of fact in his witness statement, and in his schedule of loss and damage, consistent with the things he had told the doctors and other experts knowing those statements to be false. I do not propose to make a finding in respect of each and every one of the 33 allegations of contempt but, even if it is not found to be a specific contempt, the fact that the defendant made a particular statement to more than one doctor or other expert may well provide evidence to support the inference that the central false statement was made quite deliberately knowing it to be false and knowing that it was likely to affect the value of the claim.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The role of the medical expert in consent cases

It has now been a few years since the decision in Montgomery v Lanarkshire Health Board (Scotland) Hilary Term [2015] UKSC 11.

In that case, their Lordships concluded that the Bolam test was not appropriate in cases of consent, stating:

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.  The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

See Caroline Bourke’s blog for an analysis of the cases which were immediately influenced by this decision.  There had been an initial fear by defendants that the floodgates would be opened but so far this does not appear to have happened.  An example is the recent case of Duce –v- Worcester Acute Hospitals NHS Trust [2018] EWCA Civ 1307 decided in May 2018.  In this case the claimant argued that she had not been warned of the risk of post-surgical pain following a hysterectomy.  She claimed that if she had been warned of this risk, she would not have had the operation and would have gone down the line of conservative treatments.  It was accepted that she was not warned of the risk but the judge found that the claimant would have proceeded with the operation even if so warned, i.e. it was not a material risk.  This was upheld on appeal. 

Material risk is not defined in Montgomery and whether a risk is material will depend on the circumstances of the individual patient.  As a crude example, the risk that an operation may leave one with a hoarse voice is much more significant to a teacher than to librarian.  What interests me is how this impacts on the role of the medical expert.

It is not the medical expert’s place to decide whether a particular treatment and particular risks should be discussed with a patient.  Their role should be confined to giving evidence on whether a doctor has correctly identified the reasonable range of treatment options and correctly assessed the risks (and benefits).

Take the example of the teacher who is facing an operation which may make her voice hoarse.  The percentage risk may be so low (say 1%) that the treating surgeon fails to warn the teacher and fails to discuss alternative treatments.  When that teacher comes to make a claim, her medical expert is not entitled to provide evidence on whether that 1% risk is a material risk.  This is for the court to decide and the claimant’s witness evidence will be crucial.

On a few occasions I have struggled with medical experts who fail to limit their opinion in this way.  I suspect that Montgomery has not been fully understood, but hopefully this will become less so as the case law continues to evolve.  More alarming is when Montgomery has been fully understood by the medical expert but they have sympathy with the treating doctor and consider Montgomery to be unfair (particularly as the decision has retrospective effect).   The potential is for that expert to find a way to be unsupportive of the claim, thereby redressing a perceived imbalance.  Even when not faced with this, it is clear that the floodgates have not opened as once feared and that consent cases remain difficult for claimants to win.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Tube train victim receives rehabilitation

My client’s arm was caught in the door of a tube train at Notting Hill Station. The train moved off. Unable to free herself my client was dragged down the platform and into the tunnel where she was rescued by the emergency services from under the train.

At St Mary’s Hospital my client was treated for serious pelvic and lumbar fractures, as well as a de-gloving injury to her right leg. After a month’s stay she was discharged home with basic equipment to manage.

Within days of my instruction, I appointed a case manager and obtained funding to provide my client with professional carers and domestic support while she recovered. The hospital was slow to provide follow up care. The fixator on her right leg was still in situ and ready to come off but a date could not be offered for some time.

Ian Sinha, treating surgeon, was approached to perform the surgery in his private clinic and a date could be offered within a few weeks. Part of the fixator was removed; the femoral ring sitting on the upper leg which caused most discomfort. My client was then able to commence home-based private physiotherapy. While waiting for follow-up surgery, she also visited Lynden Hill Clinic for residential rehabilitation. Six weeks later the tibial ring was removed, again on a private basis and with funding provided through the claim.

My client continues to recover and is doing so during a second stay at Lynden Hill. Upon her return an occupational therapist will visit to assess the suitability of her home and make recommendations for aids, equipment and adaptations as needed.

The above is a good example of how funding can make a huge difference in a person’s rehabilitation from serious injury. It is not always possible, but I work hard to make sure provision is made where it is. This, I feel, undoubtedly makes for a better outcome overall.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Some post-Defence considerations in clinical negligence cases

Once a clinical negligence case has been through the Pre-Action Protocol for the Resolution of Clinical Disputes and it is clear that the parties have not been able to resolve the dispute, it will then be necessary for the Claimant to begin court proceedings by way of issuing the Claim Form at Court and then serving on the Defendant the Claim Form and Particulars of Claim (and associated documents, such as a medical report and provisional Schedule of Loss and Damage) setting out the Claimant’s case in formally legally pleaded form.

The Defendant will then respond within a month (or possibly two by agreement between the parties) with their formal Defence, which sets out which allegations in the Claimant’s claim as set out in the Particulars of Claim the Defendant admits, denies or puts the Claimant to proof and, if denied, the Defendant must also set out his reasons for the denial and state his own version of events if they are different from that of the Claimant. The Particulars of Claim and Defence, known as “statements of case” (they used to be called pleadings), will now have set out the respective positions of both parties in the claim and the strengths and weaknesses of each parties’ case should be somewhat clearer.

The next procedural step will be receipt of a Directions Questionnaire and a date for the Costs and Case Management Conference, at which, amongst other things, the timetable for the remaining steps in the case to trial will be set. However, the post-Defence period can be a useful time for a Claimant to take stock of his or her case and evaluate whether there are any “interim” measures or steps that might usefully be taken. Some examples that may be worth thinking about are set out below; these can also be considered at any time after service of the Defence up to close to trial, so they should be constantly in the mind of the Claimant (and also the Defendant).

First, it may be worth having a think about preparing a Reply to the Defence under CPR Part 16.7. In my experience, Replies are quite unusual in clinical negligence cases. However, there may be an issue in the Defence that requires a specific response. I did recently serve Replies in a case in which the Defence contained factual information that the Claimant had not (and could not have, as they did not know) anticipated, so the Reply was an opportunity for the Claimant to respond to the additional or new factual matrix, as well as highlight the Claimant’s case on matters on which it appeared from the Defence as if the Defendant had not fully understood the Claimant’s case.

I also think about serving CPR Part 18 Requests for Further Information (RFI). These can be very useful if something asserted by the Defendant is unclear in the Defence and, therefore, needs clarification. This may, for example, be a factual matter which is within their knowledge but not within the Claimant’s knowledge; or more detailed information may be required about a specific assertion in the Defence to clarify it. It is notable that Part 18 requests do not just apply to statements of case and can be used at any time during the proceedings. They are not very widely used in my experience and my feeling is that they are probably not used enough, as they can be very helpful in flushing out additional information relatively early on in the timetable. They should be used judiciously and thoughtfully, though.

Another potentially useful interim mechanism is the Notice to Admit Facts under CPR Part 32.18. Such a Notice can be served any time up to 21 days before trial, so it is not necessary to use this mechanism at the statement of case stage, but it is one worth considering both at this stage and throughout the rest of the case. For example, if a fact was not admitted in the Defence but it seems that it should have been, as there appears to be no basis upon which it cannot be, then it may be worthwhile seeking to use this Notice as the mechanism to force the admission that should have been in the original Defence.

I will also always have a think about whether to enter judgment at the post-Defence stage if it has not already been entered and there are admissions contained within upon which judgment can be entered, for example any admissions of breach and/or causation that are in the Defence and sometimes which had not been made prior to this point. Surprisingly, admissions are sometimes made in the formal Defence even when there has been a full denial in a Letter of Response: I have had cases where a Letter of Response denying breach of duty was served, followed a few weeks later by a Letter of Response denying causation, and yet a full admission of both breach and causation was made in the formal Defence once proceedings had been formally issued and served.

If I do enter judgment, then I consider that it is important to consider obtaining interim payments on account of both damages and costs. The former is important because it can enable a Claimant to begin the setting up of an appropriate care and therapies regime and to begin their rehabilitation and treatment: this may be especially important in cases in which prognosis is uncertain and treatment is necessary. Or it may just assist the Claimant to have some of their damages early for a multitude of other reasons. If judgment is entered, it is also mandatory for the courts to consider whether to make an interim payment on account of costs and this is something that I routinely include in all judgment orders other than in very rare circumstances. In cases in which it is likely that the quantum aspect of the proceedings will be lengthy, it is worth seeking the liability-related costs to be assessed “forthwith”, as that ensures that such costs can be sorted out and paid whilst the quantum case remains ongoing.

It is also at this point worth thinking about Summary Judgment under CPR Part 24 or even a “strike out” under CPR Part 3.4. The latter tends to focus on the case as pleaded whereas the former can involve the court reviewing the state of the evidence, albeit limited at this stage. With respect to Summary Judgment, the test involved is fairly stringent and, therefore, the Claimant must be fully satisfied that the Defendant genuinely has “no real prospect” of successfully defending the case and there is “no other compelling reason for a trial”. Summary Judgment is rare in clinical negligence cases in my experience, and even rarer immediately post-Defence because the evidence has not yet been disclosed and so it is likely to be too early in the proceedings for such an application to be successful, but it is a mechanism to keep in the back of one’s mind.

Based on the pleading in the Defence, I will also consider carefully whether I need any additional evidence, be that factual (documentary or witness) or expert, but particularly the latter. This is because it is necessary to obtain permission from the court to rely on specific expert evidence at trial, so it is important to establish at this stage if and what additional expert evidence is likely to be required.

Finally, depending on the nature of the case, I will always consider with my Claimant client whether we should be making a Part 36 Offer at this stage or, at the very least, making overtures to the Defendant of the possibility of facilitating settlement with the other side by way of the various forms of Alternative Dispute Resolution.

As can be seen above, and the list is by no means exhaustive, there a number of matters to be considered and weighed up once a Defence has been served and the lie of the land in the case has become clearer. There are often no “right answers” and each of the above mechanisms should be viewed on their own merit and on the basis of each case’s own individual circumstances, but in some cases there can be tactical and/or other advantages to the careful use of one or other of them, so do keep them in mind: and the same applies to Defendants, too, of course!

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Discount rate – one year on

It hardly seems a year ago now that the “discount rate” was dramatically lowered by then Lord Chancellor, Elizabeth Truss, from 2.5% to minus 0.75%.

The discount rate is a percentage the courts apply to annual losses in order to reflect a claimants’ likely real net rate of return on investment in lower risk investments. This is intended to ensure that a claimant, who may receive lost earnings to retirement, or all their care costs, in one lump sum, is put in the position they would have been in had they not been injured and are not over-compensated.

27 February 2017 was a memorable day. The gasps from those in the injury claims world were audible. The last time the rate was set was in 2001 at a time when the Bank of England interest rate was 6%. Calculators were grabbed, files were reviewed, urgent emails and tweets were sent.

Claimant lawyers, spearheaded by APIL (the Association of Personal Injury Lawyers) had campaigned for over a decade for a lowering of the rate. A reduction was indeed expected and long overdue. We argued that at a time of prevailing historically low interest rates, claimants’ hard-fought compensation was being excessively discounted on the assumption of investment returns which could never come to fruition. Claimants who depended on their compensation to meet a lifetime’s care needs, for instance, needed to be treated as risk adverse investors and not be forced to gamble the compensation they depended in a risky investment portfolio in order to offset inflation and to meet their needs.

Successive Lord Chancellors had resisted calls for the discount rate to be lowered, throughout the sustained period when economic conditions resulted in interest rates remaining below 1% from 2009. Indeed in 2001, the year the last rate was set, the Bank of England interest rates decreased from 5.75% to 4% and by the end of 2008 had slid further to 2%. These dramatic changes had never been followed through into the discount rate. The issue was of course hugely political as the NHS are – sadly – the largest defendants in the injury litigation arena.

Notwithstanding the rate having remained the same for 16 years, when it was reduced a consultation process was immediately announced and the very next day the UK’s main insurers were given an audience at Downing Street to express their concerns.  Whilst there was enormous relief from our camp that, at last, injured claimants would be fairly compensated, there was an initially disbelief at the scale of the change. Comments such as “It must be a misprint”; “This will have to be reversed”, “It is outrageous – insurers will go bust” were commonplace. There were even calls for Ms Truss to lose her position, despite her having heard for months evidence from the leading financial experts in Britain as to the appropriate rate to set. Quick calculations illustrated that a catastrophically injured client’s compensation would be substantially increased by hundreds of thousands of pounds. However, there was an unexpected side-effect.  As the same percentage discount is applied to the methodology by which accommodation claims are calculated, the minus rate effectively took away an award for such losses.

So, have the gloomy predictions come true in the last 12 months? Work on the Brexit referendum result of the previous summer continues to occupy a great deal of  the political agenda and parliamentary time. We have seen a snap general election and two new Lord Chancellors in 12 months. There has been no quick reversal of the rate, as some predicted, and the consultation process continues with no official indication yet as to when it will conclude.   The only indication so far seems to be that in future the rate will be re-set much more frequently.

Notably insurers have continued to make record breaking profits:

  • Allianz UK – 26% increase to £121 million;
  • Aviva operating profit up 2% to £3,068 million;
  • AXA revenues up from £4.39 to £4.53 billion;
  • Direct Line operating profits up 51.4%;
  • and Admiral profits up 43%.

Insurers admit that they have passed on the costs directly to consumers through their premiums. I am not sure how true this is – mine happen to have fallen in the last year – but I for one do not mind paying £5 per month more on my car insurance if I was told that this was to compensate fairly survivors of serious accidents. Certainly, predictions of unsustainable losses within the insurance industry appear wide of the mark.

What of settlements? Unfortunately, at a time when survivors and their families need clarity and early recourse to justice, there is uncertainty and yet more delay.  Initially many claims were put on hold as an immediate increase in the rate was expected in some quarters. There was an unwillingness for insurers to accept this change in the claimants’ favour. Some insurers have refused to settle cases at the prevailing legal discount rate, forcing claimants into having to choose between going to court at expense, risk and delay if they want the issue adjudicated upon, or take offers on the table and move on with their lives. In terms of accommodation claims, creative thinking is still needing to be applied to get around the problem; as in the interests of justice it cannot be right that those who require larger accommodation for live-in carers or level storey wheelchair accessible accommodation, due to the negligence of others, cannot in law recover any compensation for the additional cost.

APIL report that insurers are raising late, fresh issues in claims and deploying other tactics in an effort to put off trial dates.  As claimant lawyers representing some of the most vulnerable people in our society, we are reminded every day that we need to do all that we can to ensure that our clients receive fair and timely compensation. After all, long after the insurers have closed and archived their files, our clients continue to live with their injuries and all their consequences and also bear a lifetime’s risk that their hard-fought compensation may one day run out or fail to meet their reasonable needs.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

£100,000 agreed for negligent bladder injury

In July 2017 I blogged about compensation for bladder injuries whether as a result of an accident or medical negligence. In what was a very good outcome for my client, I have now reached an agreement to compromise the negligence claim referred to for a six figure settlement.

My client, aged 43 years and now living in Spain, had no urological issues prior to the surgery complained of on 2 September 2014. He developed bowel dysfunction in September 2011 which was investigated and he was found to have cancer. Early the following year he underwent treatment by way of an anterior resection. Though he was extremely unwell, his bladder remained unaffected and four days post-surgery his catheter was removed without issue.

Shortly following his discharge my client was re-admitted to hospital and underwent a Hartmann’s procedure to treat peritonitis resulting from a non-negligent surgical leak. He was given an end colostomy which was to be reversed following his recovery. There were no urological issues arising.

Nine months following the surgery my client was re-admitted to have his stoma reversed. Sadly, during the procedure his bladder was caught by the operating surgeon and he suffered a through and through trauma. Resulting problems included urinary frequency (in the daytime and night), reduced bladder sensation resulting in poorer bladder control, the need to strain to void.

Following an admission of liability, I secured funds to enable my client to pay for specialist urology treatment and periodical nursing input which had previously been lacking. He was prescribed medication to help stabilise his bladder and reduce further problems.

I was able to negotiate a £100,000 compensation award which covered my client’s lost earnings, care and assistance during his recovery, the cost of sanitary products and clothing as well as ongoing visits to a private urology clinic for treatment. On account of his surgery my client found himself more vulnerable to problems with heavy lifting so provision was made for him to have some ongoing support at home with cleaning and DIY. He was also awarded compensation to pay for some much needed counselling.

Such injuries can have a huge impact. This particular client was an example of somebody who had suffered greatly through no fault of his own and I was delighted to secure for him the compensation he very much deserved.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*