I was approached in August 2013 by a gentleman who had recently been told by his consultant that during radiotherapy treatment in July and August 2012 he had accidentally been given a significant overdose of radiotherapy.  Indeed, the hospital had investigated his treatment and apologised to him for the human error that had led to this mistake in his medical treatment a year earlier.

At the time my client’s consultant felt that it was probably unlikely that he would suffer any significant harm as a result of the overdose.

My client was being treated for a spinal tumour. The “human error” in calculating the dose of radiotherapy meant that he was given doses at either end of his treatment far greater than he should have done.

His treating doctors told him that he probably had a 50% chance of suffering damage to his nerve roots over the following five to ten years and that it was possible that the areas of his bowel that received the radiation overdose might have been damaged.

At the time my client was given this information (a year after the event) he felt fine and did not have any unusual symptoms to report.  However, over the following months he started to suffer from significant rectal bleeding.  The bleeding was so bad that his clothes would be flooded and he needed to wear adult incontinence pads.  He returned to his treating consultant and was referred for specialist “argon beam therapy” which helped with the bleeding to some extent.

I instructed a consultant colo-rectal surgeon to examine my client with a view to identifying what harm the excess radiotherapy had in fact caused.  This expert in turn recommended that a consultant oncologist be instructed to review the medical records in more detail and to provide some information in relation to the depth of the radiotherapy given and to help to identify what areas had suffered damage.

The consultant oncologist prepared a very long, detailed and scientific report.  He identified that in his view my client would certainly suffer significant problems in the future as a result of the overdose. Not only was his bowel affected but it was also be likely that the skin around his sacrum would break down and the nerves in the lower part of his back would also be affected.

I obtained further expert evidence from both a spinal surgeon and a care expert.  My client needed to be able to prove which of his ongoing difficulties were caused by the spinal tumour itself and which were caused by the negligent overdose of radiotherapy.

All of the experts agreed that my client required surgery to remove the damaged part of this bowel and that he would probably benefit from a colostomy procedure sooner rather than later.

Both my client’s treating doctors and the medical experts initially felt that because of the high dose of radiotherapy the tumour was unlikely to increase in size for a long time – of course there was no medical literature available to show the effects of such high doses of radiotherapy as the dose my client received was much much more than any amount that would have ever have been prescribed.

We were gathering medical evidence to look at valuing the claim on the basis of an award for provisional damages.  On that basis my client would have received a lump sum for the harm he had already suffered (the bleeding) but thereafter he would be able to return to the court for further compensation to be awarded if the further injuries identified by the medical experts materialised.

Part 41 of the Civil Procedure Rules sets out the requirements of a claim for provisional damages as follows:

Order for an award of provisional damages

41.2

(1) The court may make an order for an award of provisional damages if –

(a) the particulars of claim include a claim for provisional damages; and

(b) the court is satisfied that SCA s.32A or CCA s.51 applies.

(Rule 16.4(1)(d) sets out what must be included in the particulars of claim where the claimant is claiming provisional damages)

(2) An order for an award of provisional damages –

(a) must specify the disease or type of deterioration in respect of which an application may be made at a future date;

(b) must specify the period within which such an application may be made; and

(c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.

(3) The claimant may make more than one application to extend the period specified under paragraph (2)(b) or (2)(c).

Unfortunately, following an annual MRI scan in late 2016 it became clear that despite the excess radiotherapy my client’s tumour had grown in size.  He was very much aware that this would have a detrimental effect on his life expectancy.  Therefore he preferred to try to settle his claim as quickly as possible on a “lump sum” basis rather than seek an award of provisional damages.

We took the decision to disclose all of our medical evidence to the hospital’s solicitors on a without prejudice basis with an offer to settle the claim as soon as possible.

The hospital had been keen to seek to negotiate settlement from the outset.   I am pleased to say that negotiations were swift and my client has now received his compensation.   Without the expert evidence from the colorectal surgeon, oncologist and spinal surgeon it is unlikely that the full extent of his future problems would have been identified.

* 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.*

I acted for Mr N in a claim for compensation following a road traffic accident in March 2012. It took me over four years to settle Mr N’s claim which is not normal for most injury cases but it was the right decision for Mr N, as explained below.

In March 2012, Mr N was riding home on his bicycle from an appointment. He was in a bus lane but moved into the outside lane as there was a stationary bus blocking his path. A few seconds after moving into the outside lane he was struck by a scooter travelling at speed. He was thrown to the ground. Mr N’s most severe injury was to his right leg. He suffered a segmental fracture to his tibia and fibula. He was admitted for surgery to fixate the fracture with metalwork. He was in hospital for 2 weeks before being discharged. Mr N struggled upon his discharge from hospital. He was not able to weight bear for six months. He was not able to work as his role required prolonged standing and walking.

I was instructed shortly after the accident. The first issue to determine was who was responsible for the accident. The scooter rider’s insurance company strongly denied liability. They claimed that Mr N had pulled into the outside lane without looking and did not give the scooter rider any time to react.

I obtained the police report and also CCTV from the local council. The CCTV footage was from a camera approximately 100 metres from the accident scene so the quality was poor. The police report did not contain any independent witness evidence. I instructed an expert road traffic collision investigator to attend the scene of the accident and to attempt to enhance the CCTV footage. This provided successful as the investigator was able to enhance the footage to the point where you could see that Mr N had safely pulled into the outside lane and had been present within it for seven seconds before being struck by the scooter. It was clear that Mr N had nothing wrong and the accident was the scooter rider’s fault. After I disclosed the report the insurers accepted liability in full.

Unfortunately, while I was investigating liability, Mr N was not recovering as expected. He had returned to work in January 2013 but had suffered ongoing knee pain. He an operation in June 2013 to remove the metal work which was successful and then an arthroscopy in December 2013 which again failed to improve his symptoms but confirmed he was suffering from a severe problem to his right knee. He stopped work at the end of 2013. Mr N’s treating doctors advised that there was nothing they could do to improve his symptoms and they recommended that he undergo a total knee replacement.

Mr N was only 42 years old at this time and was concerned about having a knee replacement at such a young age. Knee replacements on average only last 10 to 15 years before they fail and you have to undergo a revision surgery. Each revision only lasts 10 to 15 years and the quality of knee function normally diminishes with each surgery. With a life expectancy of over another 40 years, Mr N would potentially have severe problems in later life if he underwent a knee replacement in his forties.

I arranged for Mr N to seek a second opinion on a private basis. The consultant whom I instructed confirmed that there were no surgical solutions to Mr N’s pain but that he could potentially defer the knee replacement by undergoing pain management treatment. After much consideration, Mr N decided to defer surgery with pain management. I obtained interim payments and over a period of 18 months Mr N underwent intensive treatment which was successful in improving his pain levels and enabling him to return to work, albeit on reduced hours.

I was able to delay the court process (with agreement from the insurers) to allow my client to undergo and complete his treatment. When Mr N saw a medical expert this year for a final review, it was confirmed that whilst he would still need a knee replacement he had delayed it most probably for 10 to 15 years, meaning he would require only knee one revision surgery. He would now be able to work until retirement age (on reduced hours).

I then commenced settlement negotiations with the insurers and settlement of over £200,000 was agreed which included the past claim for loss of earnings, future loss of earnings on the basis that Mr N would only be able to work reduced hours and a claim for the future cost of the knee replacement surgery on a private basis.

Allowing so much time to pass meant that I was able to help with Mr N with treatment throughout the claim and to give him certainty as to the future.

* 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.*

Following more than four years after closing a consultation on the issue, the government is finally set to announce the result of its review of the discount rate for injury claims. We are told that by 31 January 2017 the Lord Chancellor will declare whether the discount rate will be changed from the existing rate of 2.5%.

What is the discount rate

The discount rate is used to calculate damages for future losses in claims, taking into account the income a lump sum might produce. It is meant to reflect the assumed net real return on the investment of damages  after allowing for inflation, tax, and any investment related charges.

The current discount rate

The current discount rate set in 2001 by the then Lord Chancellor was based on yields generated by index-linked government stock (ILGS). At that time interest was around 4.5%, a government 10 year bond had a yield of 5% and RPI was 2.9%. However, since 2001 the rate of return on ILGS have reduced significantly (ILGS yields have never been higher than 2%) which suggests that the discount rate should be significantly lower.

Effect of the current rate

The impact on lump sum settlements is significant. This current discount rate can potentially leave people with permanent injuries significantly out of pocket, so at present claimants are not getting proper compensation. The Association of Personal Injury Lawyers (APIL)  has campaigned for many years the current rate is too high and penalises those that have been injured through negligence.  The president of APIL commented “People with lifelong injuries are continuing to be undercompensated, in some cases, by hundreds of thousands of pounds, because successive governments have dragged their heels and failed to review the discount rate to reflect changes in the economy”.

Given the current economic climate, it would be unfair if the Lord Chancellor’s review does not result in a reduction of the discount rate.  However, opposing interests including the insurance industry are likely to make a reduction to one per cent or less unlikely. It is also possible that the Lord Chancellor may consider applying different discount rates to particular heads of loss (as in the Jersey case of Helmot v Simon where a discount rate of -1.5% was applied to future losses related to earnings and 0.5% for non-earning related losses).

* 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.*

Recently I dealt with a claim where the lack or otherwise of financial capacity  was a central issue.  These are expensive issues in civil litigation because the cost of a professional running the finances of an individual can be significant.   For a claimant with a large award or no suitable family member to assist, a suitably experienced solicitor is required, but it is not an inexpensive option.

Capacity is a constant issue in clinical negligence and injury  litigation. Many claimants suffered head injuries as a result of events and some have problems which pre-date or occur simultaneously with the injury but are not related to it.  Many things can impact on capacity from the more obvious acute brain injury to an underlying  degenerative condition such as dementia .

Capacity is a difficult issue and any potential claimant affected by this should seek assistance where necessary from lawyers who have expertise in these matters.

In clinical negligence the review of capacity is a necessary process  for many clients and  can vary   during the course of a case . For defendant lawyers there is often a pressure to challenge any alleged lack of capacity where possible because of the costs which can be involved.  Such challenges are  generally (but not always) unsuccessful, which begs the question whether it is worth the cost of disputing the evidence.

Whilst the  logic of challenging a potentially substantial bill is evident, the personal cost to the claimant and their family can be significant. Uncertainty as to whether they will receive help, or recover the full cost of assistance can lead to increased anxiety at a time when they have  enough with which to deal. In addition, it invariably means that there are further assessments for the claimant. Whilst in itself that might be considered simply inconvenient, it should be remembered that in a catastrophic injury case a claimant may see up to 14 experts  of varying specialities often for several hours at a time .  That is a considerable amount of scrutiny and review for someone who is vulnerable and not in the  best of health.

Some claimants are genuinely borderline in their ability to deal with finances in particular and it has to be remembered that the assessment of capacity is linked to the particular decision to be made. A person may have capacity to budget for groceries but be incapable of  managing substantial funds of £1 million or more.  Most people without any underlying issues might find that a challenge.

In my case due to the defendant solicitors challenging whether my client lacked capacity to manage her affairs (where there was in fact realistically little prospect of her being able to manage), two additional reports had to be obtained by the team dealing with her finances at obvious cost. There was also the additional work  which I  and those supporting her had to complete putting together the evidence to defeat the assertion that she could somehow manage.  Both teams put together extensive evidence in support to rebut this which led to a change of view by the defendants and ultimately an acceptance that my client required assistance.

I cannot say whether the defendants in my case think it was a worthwhile exercise challenging this issue in terms of time or funds.  In due course I will recover from them the cost of this additional work which is likely be substantial.  I imagine the defendant lawyers will also be paid for the work they have done on this issue. For my client it caused uncertainty in an already difficult case at a time when she was least able to deal with this.

Anecdotally I cannot think of many cases where a challenge by the defendants on capacity has been successful but I can think of several cases where there have been efforts to do so and many more cases where the cost of assistance has been disputed. Whilst the latter may be more reasonable, I would question the decision to challenge the former. I wonder whether this is a good use of NHS funds and I question whether this is not a process which causes anxiety and distress to the claimant with little prospect of success.

In my case, as with others, the evidence was finally overwhelming but the cost of that evidence, including additional reports and interviews, was so significant that it has added to the distress of my client. I am not so sure that this was at all useful, productive or indeed kind to someone who had been significantly damaged by the NHS and left with a lifelong disability.

* 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 court’s decision in the recent case of Qader & Ors  [2016] EWCA Civ 1109 provides some good news and a welcomed interpretation for solicitors acting for injured claimants.

The question which arose in these conjoined appeals was whether the fixed costs regime continues to apply to a case which started under the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”), but which is allocated to the multi-track after the commencement of proceedings. The main issue revolved around the interpretation of Section IIIA of Part 45 of the Civil Procedure Rules, read together with the relevant provision of the RTA Protocol and against the background of the process of consultation preceding Jackson LJ’s Review of Civil Litigation Costs.

In this case it was identified that there may be a number of situations where claims are properly started in the RTA protocol, where liability is then disputed and proceedings issued, which are  likely to be allocated to the multi-track rather than the fast track. One such example is where an allegation is made that the claim was dishonestly fabricated. In the present cases, the allegations of the dishonest contrivance of the relevant accident led to the claims being allocated to the multi-track. The problem which arose for the claimants and their solicitors were that the matter was likely to last more than one day at court and would involve resisting serious allegations of dishonesty, but the recoverable legal costs might be limited to the fixed costs regime which was only truly suitable for fast track matters.

The issue arose primarily because there was nothing in rule 45.29 which expressly limits the fixed costs regime applicable to cases started but no longer continuing under the RTA Protocol to fast track cases, or which excludes the fixed costs regime when a case is allocated to the multi-track. The language of rules 45.29A and B, taken together, actually appears unambiguously to apply the fixed costs regime to all cases which start within the relevant Protocols but no longer continue under them.

The Court in considering these appeals concluded that Section IIIA of Part 45 should be read as if it expressly stated that the fixed costs regime is automatically dis-applied in any case allocated to the multi–track, without the requirement for the claimant to have recourse to Part 45.29J, by demonstrating exceptional circumstances.

The court carefully analysed the historic origins of the scheme now enshrined in Section IIIA of Part 45. In particular, the court highlighted that during the process of consultation which preceded the scheme, it was demonstrated that the intention of those legislating was that it should not apply to cases allocated to the multi-track.  The court concluded that the wording suggesting that the fixed cost regime continued to apply to cases allocated to the multi-track was a drafting mistake, which the court  had the power to put right by way of interpretation, even if it required the addition of words. It was held that in very rare cases where something had gone wrong, the court’s interpretative power must be used, as far as possible, to bring the language into accord with what it is confident was the underlying intention.

The outcome of these appeals were of particular significance and warranted intervention from the Personal Injury Bar Association and Association of Personal Injury Lawyers. It provides a sensible clarification on the issue raised, which solicitors representing injured people can rely upon if they are ever facing the prospect of the fixed costs regime for a claim allocated to the multi-track.

* 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.*

All too often we see the headlines of “health and safety gone mad”, suggesting that businesses and owners of premises are required to jump through endless hoops in their quest to avoid being sued for other people’s mishaps.  In fact, this is far from a realistic interpretation of the state of our legal responsibilities as the recent decision in English Heritage v Taylor demonstrates.

The claimant, Mr Taylor was visiting Carisbrooke Castle on the Isle of Wight.  The castle had an elevated cannon firing platform, from which ran a steep informal pathway down a grassy bank.  On the other side of the grassy bank, beyond a bastion wall, was a 12 foot sheer drop into a dry moat.  Mr Taylor set off down the pathway, lost his footing and fell into the moat sustaining injury.

A central issue of the case was whether anyone contemplating going down the steep slope could have seen when setting off that there was a sheer drop into the moat.  The Judge at the time of trial visited the site and found that English Heritage were in breach of section 2 of the Occupiers’ Liability Act 1957 in that they had failed to warn visitors, by means of a sign, of the danger which caused the accident.  Mr Taylor for his part, was held to be 50% to blame.

English Heritage’s insurers appealed the decision, saying that if this were upheld, then all similar public organisations would have to adopt an unduly defensive approach on their historic sites, leading to an unwelcome proliferation of ugly warning signs that was contrary to the public interest.

The Court of Appeal dismissed the appeal.  The Court held that the sheer drop was not an obvious danger.  The risk Mr Taylor took was that he may have fallen on the grassy slope, which was unlikely to cause him injury.  The risk of falling 12 feet down a sheer drop was of a different magnitude and one that English Heritage should have taken reasonable steps to warn of and protect against.  The 50/50 apportionment was upheld.

In making its decision, the Court of Appeal highlighted that this was a straightforward application of the principle established by the House of Lords in Tomlinson v Congleton BC that adult visitors did not require warnings of obvious risks, but risks where they did not have a genuine and informed choice.  In all cases the Court should consider all the circumstances, including how obvious the danger was and in an appropriate case, aesthetic matters.

In terms of what was required from an occupier, the steps needed to be no more than reasonable steps.  The insurers were found liable on a very specific basis, namely the failure to provide a sign warning of the sheer drop which was not obvious.  As such, the decision should not be interpreted as requiring organisations like English Heritage to fill their historic sites with warning signs.  The popular press can rest easy.

* 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.*

On 27 October 2016 the Royal College of Surgeons (RCS) published its new guidance on consent on the back of the landmark Supreme Court case in April 2015 of Montgomery v Lanarkshire Health Board, with the warning that “NHS trusts risk facing a dramatic increase in the number of litigation pay-outs made if they do not make changes to the processes they use to gain consent from patients before surgery.

The RCS goes on to state in the same press release that the NHS Litigation Authority, the body which handles clinical negligence claims against NHS trusts, paid out more than £1.4 billion in claims during 2015/16.  This is an increase of approximately £320 million over the preceding year, although it is also worth noting that new clinical negligence claims registered with the NHS LA fell by 4.6% over the same period.  The RCS explains its concerns that the bill to the NHS could increase significantly if hospitals do not take the Montgomery ruling seriously.

It has been over 18 months since the Montgomery judgment and, from a practical perspective, it has certainly seemed (of some concern) as if it has taken longer than it probably should have for some clinicians at the coalface to recognise and appreciate the importance and significance of the case.  The RCS’s guidance is welcome, therefore, as hopefully it will focus surgeons’ minds on the issue of consent going forwards; and not just surgeons but all clinicians, as the impact of the case is wider than just the issue of surgical consent.

The guideline published by the RCS is a very comprehensive document setting out in terms the post-Montgomery requirements to ensure proper and adequate informed consent.  It sets out on pages 4-5 six key principles which underpin the process of consent, which in summary are:

• The aim is to ensure the patient has the information they need and want with which to make an informed decision about their treatment.
• The discussion must be tailored to the individual patient.
• The clinician must explain to the patient all reasonable treatment options and their pros and cons.
• The clinician must also discuss all “material” risks with the patient.  The RCS quotes from the judgment to define “material”, but in essence the term has an objective element, i.e. whether a reasonable person would be likely to attach significance to the risk, and a subjective element, i.e. the doctor should be aware that this particular patient would attach significance to the risk: this is the “patient-specific” element.
• Consent should be written and recorded, with the patient signing the consent form at the end of the discussion.  However, the RCS points out that the signing of the form is merely evidence that the discussion has taken place, not that proper informed consent has occurred.
• Finally, a record of the discussion between doctor and patient should be made, including documenting the important factors discussed and the decisions made.

On page 6 the RCS confirms that, “it is essential that all patients have given valid consent for all treatments and investigation … consent refers to the right of patient to decide what, if any, clinical care they are to receive …”  This is an acceptance that the judgment does not just affect consent to surgery but is wider and applies to examinations, investigations, etc.  There is helpful discussion on pages 8-11 of the principles underlying supported decision-making, including no treatment as an option and acting in the patient’s best interests.

There is then a detailed section on pages 12-19 of the actual consent discussion, setting out exactly what surgeons should provide patients with information about, namely:

• The patient’s diagnosis and prognosis
• The right of the patient to refuse treatment and make their own decisions about their care
• Alternative options for treatment, including non-operative care and no treatment
• Advice on lifestyle that may moderate the disease process
• The purpose and expected benefit of the treatment
• The nature of the treatment (what it involves)
• The likelihood of success
• The clinicians involved in their treatment
• Potential follow-up treatment
• The material risks inherent in the procedure and in the alternative options discussed
• For private patients, costs of treatment and potential future costs in the event of complications.

The document emphasises (page 13) that a doctor should not make assumptions regarding the wishes of a patient, must give advice regarding the treatment that the doctor recommends in an impartial and factual manner and must not allow the doctor’s personal views and preferences to have an impact on their description or emphasis given for the options given.  There are further comments on the potential importance of providing written information (page 14), the relevance of the experience of the doctor who is consenting the patient (page 15), the avoidance of problems occurring because of referrals of patients between different specialities (page 16) and the issue of the timeframe between consent and procedure (page 16).

Both the press release and the consent guidance (page 18) recognise the time pressure on doctors which “can leave little opportunity to discuss at length the diagnoses or available treatment options”, and the latter points out that “this does not change the fundament legal requirement that surgeons and doctors allocate sufficient time for a discussion that will allow them to understand the individual patient and their needs”.  The Supreme Court in the Montgomery judgment was unequivocal on this point: lack of time for, skill in or inclination for communication is no defence to inadequate consent.

Page 20 sets out a tabulated overview of the consent process.  It is a detailed checklist that sets out 10 points for the consenting doctor to follow (as per the below), with even more detail in the accompanying comments (not reproduced below):

1. Explain the diagnosis to the patient.
2. Explain the options for treatment.
3. Explain the consent and decision-making process so the patient understands what is expected of them.
4. Time for deliberation and homework for the patient.
5. Discuss the patient’s wishes, needs, views and expectations regarding any treatment they might undertake.
6. Discuss trade-offs with the patient in light of their needs, goals and expectations.
7. Provide any relevant information not already covered, or any emerging information that may have altered the conditions surrounding the various options for treatment.
8. Has the patient understood?
9. Respect the patient’s decision.
10. The signing of the form and maintaining a decision-making record.

The checklist is certainly a comprehensive list and one which, should it be followed by a clinician, would likely guarantee that proper informed consent had been obtained.  However, the practical reality of being able to abide by every single aspect of the list in the busy cut and thrust of frontline medicine is perhaps a little more problematic, and some may feel it is an overly burdensome wish list that cannot always be attainable within an under-resourced and increasingly stretched NHS: but only time will tell.

The guidance concludes (pages 23-39) with a helpful bibliography and list of useful resources for reference, with some commentary to assist including on relevant case law and statute.

In conclusion, there can be no doubt that clinicians are now required to take the Court’s ruling seriously and must understand and put into effect the steps necessary to ensure a patient-centred approach to treatment as envisaged by the Court, and the RCS’s guidance is to be welcomed.  The Supreme Court was of the view that the long term effect of Montgomery would be to reduce litigation and, if doctors do follow the RCS’s and other recent guidance on consent, and the Court is right, this ultimately will serve to benefit patients, doctors and the NHS, which can only be good news.

* 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.*

Injury claimants have been hit with a double blow over the last two weeks. Firstly, on 11 November 2016, the Lord Chancellor, Liz Truss announced that Lord Justice Jackson had been commissioned to undertake a review of costs in civil litigation. The primary aim of the review is to develop proposals for extending the use of fixed costs in civil litigation. Secondly on 17 November 2016, the Ministry of Justice announced a consultation to reform the procedure for whiplash injuries and low value injury claims in general.

In this post I consider these proposed reforms out of turn, starting with the reform to low value injury claims.

The current Government has been heavily lobbied by the insurance industry for changes to reduce the volume of claims so that the cost of insurance premiums can be reduced. George Osborne set out a strong intention for reform last year indicating that damages for minor whiplash injuries could be removed altogether.

The proposed reforms do not appear to go that far but include the following:-

• Reducing the average payment for a minor whiplash currently thought to be £1,800 to £425
• Introducing a tariff system for more severe whiplash injuries
• Increasing the small claims limit from £1,000 to £5,000 so no legal costs are recoverable and inevitably claimants are not legally represented.

The consultation will run only until 6 January 2017 and, without wishing to sound cynical, the outcome is a fait accompli. There is little public sympathy for whiplash claimants or opposition to the reforms. There is a general perception that these claims are meritless and often fraudulent. People associate them with the spam calls they are being plagued with from cold callers. The Ministry of Justice’s tag line for the proposed reforms is that it will save £1 billion and motorists could see their premiums cut by £40 per year (although this would be offset by the recently announced hike in insurance premium tax). I will believe it when I see it. The main result is likely to be claimants not being to seek legal representation or advice when they have suffered genuine injuries or not bothering to claim at all due to the stigma attached with doing so. I also have concerns about who will represent those injured people who do make claims market once solicitors have ceased to do so.

On the issue of the extension of fixed costs, Lord Justice Jackson’s review is due to be completed in July 2017. I specialise in serious/catastrophic injuries and therefore this development gives me more cause for concern. He carried out a series of lectures at the turn of the year setting out his view that fixed costs should be expanded to further areas of civil litigation and should be increased in scope to the “lower reaches of the multi-track”.

The current position is that fixed costs are in place for all injury claims with a value of up to £25,000. Lord Justice Jackson suggested in his lectures that this should be extended to all claims with a value of up to £250,000. He set out a table of proposed fixed recoverable costs which were not in my view realistic.

Whilst I appreciate the rationale for increasing fixed costs, the people who normally suffer are claimants. Cases with a value of up to £250,000 can involve life-changing injuries, complicated liability investigations and complex expert evidence. For example, I am currently dealing with a fatal case which falls into this value, with multiple defendants, several witnesses and a possible 5-day trial. The case obviously has the upmost importance to my client. If costs were fixed then it would affect how I was able to prepare the claim. I have other cases within this value involving injuries which prevent my clients working in their chosen professions. It is for the claimant to prove their claim and this means their solicitor has to ensure the evidence served is cogent, well prepared and persuasive. The introduction of fixed costs will restrict a solicitor’s ability to prepare a case properly which in my view is not in the interests of justice.

I do not see the necessity for an expansion of fixed costs. There is already a system of costs budgeting in place for cases over £25,000 where the judiciary have the ability to limit and restrict costs to sums proportionate to the issues at stake and the value and complexity of the claim. This system was introduced in 2013 and is just bedding down. Why not give it more time to see if it is effective?  Insurers also have the opportunity to challenge unreasonable or disproportionate costs through assessment by the court.

I have more hope that Lord Justice Jackson review is less of a formality. He has appointed an impressive panel of assessors who will no doubt provide cogent evidence that fixing costs in cases with values of up to £250,000 will lead to inequality of arms and injustice. Whilst I expect the scope of fixed costs to be extended, I hope that it will not be to claims as high as £250,000.

* 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.*

It is fair to say that most people enjoy their jobs, it gives them a sense of purpose as well as the all-important ability to provide for themselves and their family. An injury following an accident can have a huge impact on a person’s ability to work. Fortunately, some people are able to return to work once they have made a reasonable recovery. But for those with life-changing injuries, it can sadly mean the end of their careers.

Over the years I have dealt with many clients who were understandably distraught at the loss of their careers. One was a hairdresser who as a consequence of lower limb injuries had to forego a job she loved. She really enjoyed her job and was delighted to be working on the King’s Road. But work in such an environment required being on her feet all day and in view of her condition, this was impossible. Her devastation could not be overstated, and whilst quantifying loss of job satisfaction in monetary terms is extremely difficult, I was able to claim for loss of congenial employment in addition to claiming for loss of earnings.

Another client was an arts handler at a well-known art gallery and even though he eventually made recovery following numerous surgical procedures, he is left with weakness in his upper limbs. He has residual earnings capacity but is unlikely to be able to return to his pre-accident occupation. This is because his job involves handling priceless pieces of art and his employers are not prepared to take the risk of any accidents involving these art pieces. It was such a blow to my client, who suffers from learning difficulties. He had been able to “hide” these difficulties for a number of years and enjoy the social aspect of his work.  Needless to say, his confidence was severely affected. He too is able to claim for loss of congenial employment as well as loss of earnings.

Awards for loss of congenial employment are usually between £5,000 and £7,500. Not much for the loss of a satisfying job, but it is nevertheless a recognition that a claimant has lost a job that they loved.

I have on occasions also claimed for the loss of a chance of better employment in cases where my clients, by their injuries and limits imposed upon their employment, are denied the opportunity to advance their careers. The potential loss through inability to apply for promotions or take other career enhancing opportunities can be quite substantial.

It is worth considering these heads of claim in addition to the other usual losses in cases where clients have been forced to change careers through no fault of their own.

* 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.*