Earlier this year I wrote about a  case where the court did not allow an extension of the “limitation period” (the time limit for bringing court proceedings) to enable a survivor of abuse to take a claim forward, click here to read my previous blog.

Generally, there is a 3  year period from the date of the event or, in the case of a child, from the age of 18, in which a claim for injuries caused by negligence can be brought at court. The period  is different if a claim is directed at the person who did the abusing (an assault type issue).  In cases against an employer or organisation  which was negligent in not preventing the abuse, there is a general assumption that the court will exercise a discretion to extend that time and to waive the period.  However, another very recent case, Archbishop Michael George Bowen -v- JL  suggests  that the courts are getting less lenient in attitude.

This was a case where in fact the trial judge had exercised his discretion in favour of the claimant.  However, the defendant decided to appeal the decision.  It went to the Court of Appeal and the Court of Appeal’s decision was that the trial judge had failed to take into account the full extent of the delay and the considerable prejudice caused by it.

In this particular instance, the claimant alleged that he had been abused by a Father Laundy  for a period of 10 years leading up to 1999.  The claim was commenced in 2011.  The limitation period had long since  expired.

The circumstances of the case  were that Father Laundy was a Catholic priest and the chaplain of a scouts group attended by the claimant.  The archbishop was a nominal defendant, that is that he had been in the post of archbishop of the area at the time.

The first issues in relation to sexual assault appear to have arisen when the claimant was approaching 17.  The alleged abuse continued over a decade or so.

Father Laundy was subsequently arrested in connection with allegations of sexual assault concerning other individuals.  There was a criminal charge.  Father Laundy was convicted of criminal acts in relation to the claimant.  He could have defended those but he chose not to do so.  He did however indicate that any sexual relationship with the claimant was by consent. Much of the activity was after the legal age of consent and it was unclear what incidences may have taken place before the age of 16.

Normally a claimant would feel quite safe in relying on criminal convictions to provide evidence for a civil/compensation claim.  This does not however prevent a defendant from challenging this particularly if the defendant is not the perpetrator but an employer.

The convictions were indeed subsequently relied upon by the claimant, understandably, in the civil proceedings.  This meant that in order to defend the civil proceedings, effectively the archbishop’s legal team had to establish that Father Laundy had proceeded with consent.  However, Father Laundy had died.

The civil proceedings claimed that the abuse had gone on for a lengthy period and had commenced when the claimant was only 13.  Information about the original conviction seemed to be fairly minimal.

The limitation period

A claim of this kind has a three year period.  This dates from the age that somebody becomes an adult or as an adult, three years from the date of an event generally.   There are some exceptions.

For whatever reason and clearly the claimant had his own difficulties, despite the criminal trial, he did not take the claim forward for many years.  Father Laundy was convicted in 2000.  The claimant consulted solicitors in December 2010 and proceedings were issued in November 2011.

The court have to take into its consideration how a defendant is to be able to defend after a long passage of time.  The general assumption has always been that the court will tend to exercise its discretion because many of the claimants who  have suffered abuse, have their own difficulties as a result and find it not an easy process to come forward and deal with matters.

In this case, however, the court felt that the delay was too significant.  The delay was not the period from 2000 to 2011 which would, in itself, have been far in excess of the limitation period.  These events were taking place between 1989 to 1999.

The view of the court was that the question of consent was at the very heart of the defence and had some minimal support from previous evidence provided by Father Laundy.  There was certainly an arguable case that the sexual activity was to a large extent consensual.  In any event, Father Laundy was not around to be cross-examined at trial.  The court was deprived of his evidence which was fundamental to whether the case could proceed or not.

There were also some criticisms of the claimant in relation to the evidence that he provided.

Taking those issues aside, this was, in essence, something which a solicitor would ordinarily think a reasonable case to take forward. There  were criminal convictions on file for the same offences.  However, the case was dismissed by the Court of Appeal on the basis that the length of time was too long; that the claimant himself had some difficulties as a witness but, more importantly, the perpetrator of the crimes was dead and his evidence previously had indicated consent.

These are factors which occur significantly in abuse cases and this is a case which presents claimants’ solicitors perhaps with difficulties taking cases forward.  If you have been suffered  abuse, the advice always has to be that if you wish to pursue a claim, please see a solicitor as soon as possible.

It is important however for survivors of abuse and claimants’ solicitors to recognise that there is a distinct shift in the approach of the courts and they are now much less generous in their approach to claimants.

* 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.*

Stroke is the third most common cause of premature death in the UK and the biggest cause of severe disability. Every year there are approximately 152,000 strokes in the UK, according to The Stroke Association, and up to 10,000 of these could be prevented if more people were aware of the symptoms and sought out emergency treatment.

What is stroke?

Stroke is essentially a brain attack. It happens when the blood supply to part of the brain is interrupted or reduced, depriving the brain of oxygen and nutrients. The consequences of a stroke can be devastating. The longer the blood supply to the brain is interrupted by stroke, the greater the chance of disability, brain damage, or death. It is crucial that a stroke or the onset of a stroke is identified at the earliest opportunity.

Different types of stroke and the causes

There are two main types of stroke – ischaemic strokes and haemorrhagic strokes.

Most strokes are caused by a blockage cutting off the blood supply to the brain – ischaemic stroke. They occur when a blood clots blocks the flow of blood and oxygen to the brain. The clots typically form in areas where the arteries have been narrowed or blocked over time by fatty deposits known as plaques. This process is known as atherosclerosis.

As a person gets older, their arteries can naturally narrow, but certain things accelerate the process, including: –

• Hypertension
• Obesity
• High cholesterol
• Diabetes
• Excessive alcohol intake
• Smoking

Ischaemic stroke can also be caused by a type of irregular heartbeat called atrial fibrillation that can cause blood clots in the heart that break away from the heart and become lodged in the blood vessels supplying the brain.

Less commonly, strokes can also be caused by a bleeding inside the brain or on the surface of the brain – haemorrhagic stroke (also known as cerebral haemorrhages or intracranial haemorrhages). They occur when a blood vessel within the skull bursts and bleeds into and around the brain.  Haemorrhagic stroke can also be caused due to a condition called cerebral amyloid angiopathy, which involves a build-up of protein in the walls of the arteries in the brain that makes them prone to tearing.  The main cause of a haemorrhagic stroke is high blood pressure. Things that increase the risk of high blood pressure include: –

• Smoking
• Lack of exercise
• Stress (which may cause a temporary rise in blood pressure)
• Being overweight or obese
• Excessive alcohol intake

Risk factors.

Some factors increase the risk of stroke cannot be changed. These include: –

• Sex – men are around 25% more likely to suffer from stroke however women are more likely to die from stroke.
• Age – you are more likely to have a stroke if aged over 65, however around 25% of strokes happen in younger people.
• Ethnicity – certain racial groups are at a higher risk. This includes south Asian, African or Caribbean. This is partly because rates of diabetes and high blood pressure are higher in these groups.
• Medical History – if you have previously had a stroke. 

Life after Stroke.

I know from clients whose symptoms were not recognised or acted upon quick enough that strokes can be devastating. Some people may have relatively minor effects; however, others are often left with neurological damage causing severe and permanent disability meaning that they are completely dependent on others. It is vital to recognise the symptoms and get medical help immediately. Slurred speech, numbness in one arm, facial weakness, high blood pressure and blood infections are all signs to look out for. Sometimes the key signs of stroke are missed when they should not be. A delay in diagnosis and the appropriate treatment can be fatal or leave the person with life-long 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 nature of the work we undertake is such that we have many clients who have suffered life changing injuries or have lost loved ones in a road traffic accident.  Often the circumstances of the accident are not entirely clear.  Consequently, key information comes from the police accident report and any resulting police investigations.    It is often the case that insurers will not provide a substantive response on liability without sight of the police evidence and that can sometimes lead to difficulties, particularly where there is a financial need, notwithstanding rehabilitation needs may be met through the Rehabilitation Code.

Interim payments may be required and it can be difficult to persuade insurers to make significant payments absent clearer evidence on the accident circumstances.  Issuing proceedings with a view to making an application for an interim payment can be also be problematic without the police report.

In some cases, the police evidence is forthcoming relatively quickly.  However, this tends to be those cases where the police have reached a conclusion that there are no criminal proceedings to bring.  The difficult lies when criminal proceedings follow.  These proceedings can be lengthy and often final trials do not take place until at least a year after the accident.   All too often injured or bereaved people are left in the dark not knowing if liability is to be accepted in their civil claim.  Insurers will not generally accept responsibility without the police report and the standard police response has historically been that evidence cannot be provided prior to the conclusion of the criminal trial to avoiding the risk of prejudicing their case.

This is distressing and stressful for injured and bereaved people, who not only are having to come to terms often with life changing injuries or the loss of a loved one, but also often in financial difficulties.   So what can be done to put more pressure on police forces to provide disclosure before a criminal trial?

The Crown Prosecution Service have published guidelines to assist police forces around the country when faced with requests for disclosure where criminal proceedings are ongoing.  They are useful when faced with a reluctant police force.   Under the guidelines, entitled “Disclosure of Material to Third Parties”  a sub category considers disclosure in road traffic collisions where a criminal prosecution is pending.

The guidelines recognise that the practice of disclosure varies across constabularies with resulting inconsistencies of approach.  The guidelines are an attempt to provide consistency, with the guidelines recognising that the need for information will have an important effect for the party pursuing civil litigation, both in terms of obtaining rehabilitation and also funding for financial assistance.   The guidelines recognise the need to balance the need for information against the charged defendant to a fair criminal trial.

The guidance makes clear that it will be rare for disclosure to be refused and only if there are good reasons to show that the criminal trial be will prejudiced.   The guidelines go as far as to say that in all cases, the Police Collision Report, the Forensic Collision Investigators Report together with accompanying photographs, plans, CCTV footage and note book entries of reporting officers should be disclosed upon request, subject to editing as required, and that in the majority of cases statements should also be disclosed, subject to permission from the statement provider, with the police encouraging the statement provider to give such permission.

The guidance also sets out time frames with the longest time frame for disclosure of police witness statements, no later than 9 months from the collision, with documentation such as collision reports, investigator reports and some statements no later than 6 months from the collision.

Many police forces are not fully aware of the guidance, and investigating officers may in the first instance refer the matter to their case progression unit who will invariably refuse disclosure on the grounds of prejudice. However, the final decision rests with the Crown Prosecutor, so injured parties should not be put off by an initial refusal.  Prosecutors are more alive to the guidance and will in most cases provide the disclosure needed to help press insurers in a civil claim for an admission and funding.

* 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 recent case of Muller v Kings College Hospital NHS Foundation Trust, whilst not changing the law in relation to the appropriate standard of care, brings into question whether the traditional “Bolam” test is suitable for cases of pure diagnosis error.

The facts

Mr Muller was on holiday in Cyprus in July 2011 when he recalled injuring his left foot at some point whilst bathing in the sea. At various points throughout the case the injury was attributed to either stepping on a sea urchin or scraping his foot on a rock: in reality, no one quite knew the cause of the injury. He sought advice from a nurse in Cyprus and was told to see his GP in England should the wound not heal.

The wound did not heal so, Mr Muller went to accident and emergency as pus was beginning to ooze from the wound. He saw his GP in August who believed the wound was beginning to heal but eventually, even with antibiotics, matters came to a head in November and he was investigated by the dermatological team at Orpington Hospital. Dr Karen Watson, the treating dermatologist, performed a small punch biopsy which was sent for histological examination. A punch biopsy is a technique where by a circular blade is rotated into the skin through the subcutaneous fat, obtaining a cylindrical specimen. This ensures that the full thickness of skin is obtained for histological examination. The punch biopsy was then sent to Dr Goderya for histological examination.

Dr Goderya reported on the sample on the same day indicating that she did not detect a malignant melanoma. It is important to note that often the purpose of punch biopsy is to detect potentially cancerous cells and therefore, Dr Goderya should have been actively seeking any possible signs. Unfortunately by March 2012 Mr Muller’s condition had materially worsened and the wound had deteriorated further and was very painful. He was seen by the plastic surgery team in May 2012 who recommended excision under general anaesthetic with a biopsy to be taken for histological examination. The excision that was then performed in July was an “incomplete” excision as it did not include a margin of 2cm around the wound which would be standard practice for any site which was considered to be cancerous. This decision was likely based on Dr Goderya’s findings.

The histological report which came back from the excision biopsy showed a malignant melanoma of the ALM type. An acral lentiginous melanoma (ALM) is a type of melanoma which arises on an individual’s palms or soles: it is mostly found on the soles of the feet. Mr Muller returned to hospital on 25 July 2012 and was given the bad news about his cancer, told that it was not diagnosed in November 2011 and there was now a chance that it could have spread to other parts of his body. The spread of the cancer was confirmed in August 2012 when he was told it had spread to two of the lymph nodes. Fortunately these secondary metastases were removed and his six monthly scans have shown him to be cancer free since then.

The case

Mr Muller brought a claim against the Trust on the basis that his cancer should have been diagnosed sooner and that, if it had been, he would have been spared pain, suffering and loss of amenity, various expenses and loss of earnings.

What is interesting about this case is the difference between the parties as to the appropriate standard of care to be applied.

The Trust argued that this is a standard “Bolam” case: namely, was Dr Goderya, when diagnosing an ulcer and not a malignant melanoma, acting in accordance with a practice of competent respected professional opinion, accepted as proper by histopathologists skilled in the art of interpreting and reporting on biopsies by examining them on slides under a microscope. They relied on the expert opinion of Dr Foria that the misdiagnosis was not negligent and could easily be made by a histopathologist acting with reasonable competence and that the Claimant’s expert’s view should not be preferred and Dr Foira’s opinion was sufficient to exonerate Dr Goderya from the charge of negligence.

The Claimant argued this was not a straight “Bolam” case and instead authority should be drawn from Penney v East Kent Health Authority whereby the court should determine the objective facts about what pathological features were on the slides in November 2011 (which both sides agreed showed the a malignant melanoma) and then decide for itself, in light of each of the experts’ opinions, whether the misdiagnosis was made without the use of reasonable skill and care. The court could not abdicate its responsibility to resolve the conflict between the experts by resorting to the Bolam notion of “responsible body of medical opinion”.

The decision

Mr Justice Kerr had to ultimately conclude that he was bound by precedent and he had to approach the issue by reference to a possible invocation of the Bolitho exception. In applying that analysis he found for the Claimant and Mr Muller was awarded £16,500 plus interest in damages.

Although the overall result has not changed the law what is interesting is Mr Justice Kerr’s reasoning up until the point of judgment. His reasoning up until that point indicates that he saw the logic in cases where there is an error in diagnosis, and there therefore there is no weighing up of the risks and/or benefits that two experts expressing opposing opinions cannot both be right. Consequently, it is the perfect matter for a decision of the court (see paragraph 75 of the judgment).

For my own part I can appreciate the logic of such a conclusion. When a clinician is looking at a scan or performing a diagnostic test there is no question as to what is physically there. Assuming that the test is done correctly it does not matter, theoretically, how many times that scan or test is performed the results will be the same because what is there will always be there until treatment is received or the condition progresses.

The question of “what was on the scan in November” is surely a question of objective fact and one which, whatever expert looks at it, will only have one answer. Furthermore, as a screener or a radiologist your job is arguably to first report on what you see. The next step once you have made that initial factual observation is to either propose a diagnosis or pass it on to someone else to interpret and then diagnose.

For my own part I can see how fitting the Bolam analysis of “what a reasonably competent clinician” would see on a slide which everyone agrees shows signs of cancer is difficult. Judge Peppitt QC in Penney put is most succinctly when he said that everyone agrees the screener got the answer wrong; therefore what the Court has to determine is whether that wrong answer was excusable. That kind of determination is one which the Court should properly make as there is no “right” answer.

I think this is therefore a case of “watch this space” when it comes to the appropriate standard of care in pure diagnosis cases and Muller may be a foreshadow of a further exemption to the Bolam standard of care.

* 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 7 December 2016, the Lord Chancellor, Liz Truss, confirmed that she would announce the review of the discount rate used when calculating future financial loss in injury claims by 31 January 2017. This announcement was met with widespread surprise from both sides of the claimant and defendant divide. The Ministry of Justice’s review of the discount rate started in 2010 and had seemed to have been stuck on a dusty shelf never to be revealed. The ongoing delay had led to the Association of Personal Injury Lawyers (APIL) instigating a judicial review against the Government on the basis that the rate was too high and claimants were being undercompensated. Whilst it was successful, no announcement was forthcoming until December 2016. It was particularly surprising, given the announcements from the Ministry of Justice including a consultation looking to increase to the small claims limit and to widen the scope of fixed costs in injury cases, both of which are completely anti-claimant.

The insurance industry immediately panicked. The Association of British Insurers (ABI) sought an injunction to stop the Ministry of Justice making an announcement by 31 January 2017 with their director urging the Lord Chancellor not to rush out an announcement at a time of significant global financial uncertainty. I am not sure taking 7 years is rushing but I appreciate the sentiment. The legal action failed but on 27 January 2017, Liz Truss, confirmed that the announcement would again be delayed and would not be published by 31 January 2017. She apparently remains committed to making an announcement in February 2017. Many are sceptical this will happen.

What is all the fuss about? It arises from the basic principle that the purpose of damages is to put, so far as money can, the injured person back into the position he or she would have been had the accident not occurred. In any cases involving future loss, a claimant may receive damages for losses they may not incur for several years into the future. For example, a 20-year-old claimant who has to stop work when he is 40 years old, will receive his entire claim for loss of earnings at the time of settlement. That Claimant could technically invest that money for 20 years before his loss starts and be overcompensated.

Therefore, a claimant has to give credit for the early receipt of money using actuarial tables which apply a notional discount rate. This rate was set by the Lord Chancellor in 2001 and since that time has assumed that a claimant would be able to invest their damages free risk at an interest rate of 2.5% a year after tax and adjustments for inflation.

The argument from claimants is that it is no longer (or never has been) possible to obtain a risk free real net rate of 2.5% a year and therefore they are being undercompensated. The evidence suggests that the rate should be reduced to reflect reality. If the rate is reduced to say 1% or 1.5% it would mean that a significant claim for future loss would increase dramatically. This is why the insurance industry are so opposed to any review.

This is a big deal to seriously injured claimants and the ongoing uncertainty over the announcement is causing difficulty for both claimant and defendants. Claimants whose cases are near to settlement or trial, are obviously concerned about reaching any final agreement based on a 2.5% rate as any announcement may mean that their case is then worth significantly more. Defendants are concerned as they have no certainty as to the level of damages they may have to pay a claimant.

I welcome the announcement of the review of the discount rate. It should address a wrong which has been ongoing for years and has led to claimants being undercompensated but it needs to happen soon. Please hurry up Lord Chancellor!

* 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 well known amongst injury claims solicitors that bringing a successful tripping or slipping claim can be difficult.  The prospects of success can be low due to the lack of evidence which may be available at the outset.  In addition, once enquiries into liability have been carried out by highway authorities, it is often the case that there is evidence to show that a  reasonable system of inspection and repair is in place and has been adhered to; and the highway authority can then rely on the defence provided by section 58 of the Highways Act 1980 .  It then becomes essential for the claimant’s solicitors to challenge the adequacy of the system of inspection and repair to rebut the defence in order to succeed.

In most cases the question of the frequency of routine inspections or the adequacy of the repairs becomes pertinent.  However, in the recent case of Crawley –v- Barnsley Metropolitan Borough Council [2017] EWCA Civ 36, before the Court of Appeal, the key issue revolved around the council’s system of responding to reported defects during the period between routine inspections in minor roads.

This case arose after Mr Crawley, suffered an injury to his ankle as a result of falling into a pothole and pursued a claim against the highway authority.

The facts are that on Friday 27 January 2012, at 4:20pm a member of the public made a telephone call to the council to report the presence of deep potholes on Hill Top Avenue, Barnsley. This call was logged on the council’s computer system and forwarded to the highway inspectors.  On Saturday 28 January, Mr Crawley was out jogging in the evening, when he fell into the pothole and injured his ankle.  On Monday morning 30 January, the council’s highway inspector read the message left from Friday afternoon and hastily went out to inspect the defect.  He raised an urgent works order for the defect to be repaired within 24 hours; and by Tuesday 31 January the council’s workmen had filled and repaired the pothole.

Mr Crawley brought a claim for compensation for injuries due to the council’s negligence and breach of statutory duty alleging the council should have repaired the defect before the evening on 28 January.  At court, in the first instance, Mr Crawley’s case was dismissed by a district judge.  Unhappy with this outcome, Mr Crawley appealed to a circuit judge. This appeal was allowed and the circuit judge found that the council had failed to establish a defence under section 58 of the Highways Act.  The judge found that  if a pothole complaint was made by a member of the public on Monday to Thursday, it would be considered by a highway inspector the following day, but if a complaint was made on a Friday it would suffer a delay until Monday (although a Friday complaint by the emergency services would be dealt with on Saturday)..  On this basis, if it was reasonable to deal with the complaints on the next day if reported on Monday to Thursday, there was no justification other than a resource–based justification, for dealing with complaints made on Friday any differently.

The leading case of Wilkinson v City of York Council [2011]EWCA CIV 2011 was cited as authority that shortage of resources is irrelevant when considering the adequacy of measures taken to secure the safety of the highway.

The council aggrieved by this decision took the matter to the Court of Appeal.  The council’s ground of appeal was that the district judge, at first instance was entitled to find as a matter of law that the council had established the statutory defence set out in section 58 of the Highways Act.  They submitted, that the council had a perfectly satisfactory system in place, which included inspecting at proper intervals, dealing with reported defects promptly and taking appropriate action.  They contended that they did all that was required to establish a defence under section 58.

On behalf of Mr Crawley, the appeal was resisted and it was submitted that the council should have had in place an effective system of evaluating and responding to reports of serious road defects.  It was unacceptable for the council to do nothing until Monday.  The council’s overall system was deficient and therefore the council could not have a defence under section 58 of the Highways Act.

Lord Justice Jackson, who was in the minority in the court of Appeal, stated that section 58 requires the court to have regard to “all the circumstances”.  Whilst he readily accepted that the lack of resources was not a defence, on the other hand, the fact that most people do not work at weekends is a relevant circumstance, which the courts cannot ignore.  In his view, a system whereby reported defects are inspected on the next working day was not a perfect one, but in his view it was reasonable.  The district judge had concluded that the council had taken “such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”  In his view the district judge was entitled to reach the conclusion which he did.

Lord Justice Briggs reached the opposite conclusion as in his judgment the council’s system suffered from the built–in flaw that reports of potentially serious defects would not be evaluated at all by someone with the requisite skill out of working hours, unless reported by a member of the emergency services.  Therefore the system failed the section 58 test. Lord Justice Irwin agreed with the reasoning of Lord Justice Briggs and also stated that there must be some means of responding quickly to complaints from the public of serious of dangerous defects in the road.  The appeal was dismissed.

The outcome of this case clearly shows that there may be a more onerous duty on highway authorities than previously understood.  It will not be sufficient to prove that they had a reasonable system of inspection and repair in place, if there are inadequacies in the system of responding to reports of defects and if this is the case the section 58 defence is likely to fail.  This is of course, good news for those injured by dangerous highway defects, whose solicitors who would do well to evaluate the response to reports of defects, whilst considering the highway authorities’ system as a whole.

* 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 1 May 2015 my client suffered multiple severe injuries when the driver of the car she was traveling in collided with another car and then a tree at speed.

My client was airlifted to hospital. She lost consciousness on the way but remembers events. She suffered head, chest, left arm and pelvic trauma. Perhaps her most debilitating injury was an open fracture of her left leg.

The pelvic and arm injuries were treated with external fixation. My client has gone on to achieve a relatively good recovery from these.

The left leg has required several surgeries to date. The tibia was stabilised with an intramedullary nail before complex surgery where muscle was harvested from the right leg to cover significant skin defects over the left shin.  The intramedullary nail was later removed in favour of a circular external fixator which remains in place.

The date for the removal of the fixator remains unknown. As a consequence of the several surgeries to date, my client finds herself with a 6cm leg length discrepancy and very little strength or function in the limb. She relies on a wheelchair and walking aids indoors. Outdoors she needs to be accompanied.

At the time of the accident my client was travelling to London to start a new job as a chef. Without accommodation she was forced, upon discharge from hospital, to move in with her elderly mother who has a ground floor flat. Without professional support the situation became intolerable and was hindering the progress of her rehabilitation.

Interim funding from the driver’s insurers helped to ensure that a good case manager could be appointed and a care regime put in place. Provision of private physiotherapy and hydrotherapy has helped give my client the best chance of recovery following removal of the external fixator. Perhaps most importantly, my client now benefits from the use of her own rented accommodation which is level access throughout, close to local amenities and large enough to store her mobility equipment including her hired motorised wheelchair for outdoor use.

The future and long term prognosis remains uncertain for my client at this point in time but the interim funds paid in the meantime, and importantly the structured use of those funds to achieve maximum benefit, has helped her greatly in her continuing recovery.

* 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.*

Napoleon once opined, ‘When people cease to complain, they cease to think’. But, stereotypically, the British are not known for their ability to complain. When we are in a restaurant, and the meal we are having is terrible, and the waiter comes over and asks if everything is fine: we mumble our yes thank yous whilst averting our gaze until the waiter leaves.

When it comes to your health and your medical treatment this is something significantly more important than salty soup!  If something goes wrong with your medical treatment thanks to the NHS constitution and something called the “duty of candour” you have a right to:

• have any complaint you make properly investigated;
• receive an appropriate response;
• receive compensation where you have suffered harm due to negligence and;
• have all medical staff be open and honest with you when something goes wrong.

Firstly, you need to identify whether your medical treatment was through the NHS or undertaken privately as there are different procedures for both. This article will look at the first two stages of a making a complaint about your NHS treatment.

The stages of complaining

a) Informal complaint

Although you are under no legal requirement to make a complaint informally before you make a formal complaint, it is almost always best to discuss your concerns with someone as soon as possible. You can talk to the staff concerned or, alternatively, contact the Patient Advice and Liaison Service (PALS) and ask them to investigate the matter. It may be that your complaint can be resolved quickly through informal channels. However if you are not happy with their response, you can make submit a formal complaint through the hospital’s, GP’s or dentist’s local resolution service. 

b) Formal complaint under local resolution  

If your informal complaint has not achieved the desired outcome or, you would prefer for the complaint to be dealt with more formally, you should use the NHS complaints procedure.

i. Who can make a complaint?

If you a family member, the parent of a child who is under 16, a friend or the person who was affected by the incident, you are able to make a complaint about treatment. If someone else is complaining on your behalf you will usually need to give your permission for them to do so.

ii. Are there any time limits?

Complaints should be made as soon as possible after the incident. The NHS does impose a time limit of no later than 12 months after the event, or no later than 12 months from the date you first became aware of the issues.

When making your complaint to the NHS you can do this either verbally or in writing, but we would always recommend you put your concerns down in writing and keep copies so there is a paper trail. Key things you should include in your complaint are:

• Who/what you are complaining about?
• When did it happen?
• Where the events happened? e.g. in hospital, when you were referred by your GP, in the ambulance
• What you would like the Trust to do about it e.g. obtain a second opinion
• Whether you would like an independent clinical review: you should be aware that hospitals do not have to provide this is all circumstances
• Whether you need a copy of the investigation: we would always recommend that you ask for and obtain copies of any reviews undertaken at the hospital

After you have made your complaint, the NHS must acknowledge this within 3 working days. This acknowledgment should explain how your complaint is going to be investigated, offer you an opportunity to discuss your concerns, and give you an estimate of time scales.

At the end of the investigation you should receive a formal written response.

iii. What if I am not happy with the response I received?

If you are not satisfied with the final response you receive from the hospital you have the right to request an independent review of your complaint by the Parliamentary and Health Service Ombudsman. However, before you turn to the Ombudsman you must ensure that you have done all you can to resolve matters at a local level.

Whilst patients may not think that making a complaint will make a difference, hospitals do take patient concerns seriously and, once investigated, they can sometimes lead to changes in policies and admissions of failings. As a solicitor I would generally recommend that my clients continue with their NHS complaints as they can often inform any potential litigation. Also, as a solicitor, I can only achieve a financial compensation for my clients; the complaint system can offer you the opportunity to sit down with the individuals involved with your incident or give you the chance to obtain an apology for the treatment you received.

* 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 am frequently instructed by seriously injured clients to bring claims on their behalf and quite often liability is disputed due to conflicting evidence, lack of independent witnesses and the list goes on. In such cases the existence of CCTV evidence can be crucial in determining liability.

Recently, I was instructed by Mr C, who was already a below knee amputee and who sustained complex injuries, including brain injury in a road traffic accident. At the time Mr C was using a wheelchair due to issues with his prosthesis. He was attempting to cross the road in front of a stationary bus, straddling a pedestrian crossing, when the bus moved forwards crushing him between this vehicle and another bus ahead. Mr C believes the lights were green for pedestrians and due to his vulnerability, he had alerted the bus driver by knocking on the front doors before proceeding, but it was obvious by the bus driver’s actions that he had not taken any notice. The bus driver only became aware that something was wrong when he heard a bang!

Due to his injuries, Mr C’s recollections of the accident were hazy, but he was certain he would not have just stepped out and put himself in such grave danger. There were no independent witnesses to the actual collision. The bus company alleged the lights were not working and the crossing was not in use.

Fortunately, the bus was fitted CCTV cameras and the evidence had been retained by the bus company. Whilst the footage did not show the full extent of the accident, it appeared to be consistent with my client’s instructions. The bus company offered to apportion liability on a 50/50 basis and whilst Mr C accepted that he was partly to blame, he did not accept that he was equally to blame. We were eventually able to compromise liability on more favourable terms.

In another case, also a road traffic accident, I acted for a cyclist was knocked down by a car in the middle of the night. She had also sustained brain injury and could not remember whether the lights had been green in her favour. Liability was disputed on the basis that she had gone against red lights and the police report was unfavourable. During the course of our investigation, we were able to track down the CCTV footage from the local authority which showed what had happened. The case settled successfully.

In a potential employer’s liability claim, my client fell from height and suffered severe brain injury. There was no one around and although he knew he must have fallen off the ladder, he had no idea how it happened. The CCTV camera had not been covering that area fully, but limited footage was sufficient to assist with the issue of liability.

Obtaining CCTV evidence in the case of Mr C was relatively straightforward as the claim was against the bus company whose camera it was.  But in other cases it is not so easy and you may not even be aware such evidence exists. For example, there may cases where buses with CCTV cameras record accidents involving a pedestrian and another vehicle, but unless the details of the uninvolved bus are taken by police or witnesses, you will never know. And then you have the other problem where despite the existence of CCTVs, the footage is not available either because the cameras were not working or the footage was not kept. The retention policy varies from company to company and footage may not necessarily be kept unless it is relevant to their company. As there are no legal requirements to have CCTVs in place, there are no rules on how long their footage should be retained

It is apparent from these cases if there was no CCTV evidence, my clients’ claims would have either failed completely or the deductions from their compensation for “contributory negligence” would have been much greater.

CCTV evidence can make the difference of winning or losing a claim and every step should be taken to obtain that at the earliest opportunity, where possible.

* 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.*