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Defective Pavement Trip Leads to £6m Compensation - Daniel Slade, Express Solicitors

01/02/18. The Claimant, Mr A, was involved in accident on 22nd February 2008 when he tripped and fell on a defective pavement whilst walking from his parent’s house to visit his sister.

Express Solicitors was instructed by the Claimant in July 2008 and initially pursued the claim against Pinnacle PSG Ltd, which was responsible for the pathway.

Following failure to respond to the letter of claim and a pre-action disclosure application being made by the Claimant, primary liability was admitted by Pinnacle PSG Ltd in July 2009.

During the period between initiating the claim against Pinnacle PSG Ltd and receiving a liability response, the Claimant was receiving treatment for his injuries. It transpired that the orthopaedic consultant treating the Claimant, Mr Qamar, had failed to diagnose bilateral quadriceps tendon ruptures. His treatment at Homerton Hospital was then transferred to the Royal National Orthopaedic Hospital where he received treatment and surgery to reconstruct the ruptured tendons.

For the purpose of the civil action, the Claimant was initially examined in August 2012 by a Consultant Orthopaedic Surgeon, whom reported on the Claimant’s injury and recommended further investigations which lead to the instruction of a knee surgery specialist.

Mr Mitchell examined and advised that the surgeries performed had unfortunately made little difference to the Claimant’s ability to mobilise. Mr Mitchell advised Mr Qamar failed to diagnose the quadriceps tendon ruptures, the Claimant would have been able to mobilise independently and would have been able to walk long distances around 6-12 months after the accident. He would also have been able to apply for work and his home life would have returned to normal around 6-12 months after the accident. Mr Mitchell also noted that there were notes missing from Mr Qamar’s fracture clinic within the Claimant’s medical records.

Proceedings were initially issued against Pinnacle PSG Ltd (First Defendant), the Trust (Second Defendant) and Mr Qamar (Third Defendant) in June 2011. The Trust confirmed in their Defence that they were vicariously liable for the actions of Mr Qamar and the matter against Mr Qamar was subsequently withdrawn. The Trust admitted that the treatment provided by Mr Qamar to the Claimant was negligent and acknowledged that they had failed to diagnose the Claimant’s bilateral quadriceps tendon ruptures until September 2008. They acknowledged that had this been picked up and treated within 48 hours of the original injury then the prognosis would have been significantly better.

The First Defendant pursued a Part 20 claim against the Second Defendant on the basis that the actions of the Second Defendant broke the chain of causation between the First Defendant’s negligence and the Claimant’s injury, loss and damage. The Second Defendant was of the view that there was a part of the claim for which the First Defendant was liable, i.e. the initial injury, symptoms and losses the Claimant would have suffered in any event arising out of the material accident.

At case management, each party was permitted to rely on the evidence of an Orthopaedic Surgeon, Neurologist, Care expert, an Accommodation expert and an Employment Consultant.

In June 2013, The Second Defendant served examinations from Mr Sweetnam, Consultant Orthopaedic Surgeon, and Professor Schapira, Consultant Neurologist, however the evidence served from both experts was in the form of a letter only.

Mr Sweetnam provided in his letter that he had concerns “due to the aggressive neurological deficit” developed by the Claimant following his injury and that he was “developing distinct neurological symptoms” which he was unable to explain from an orthopaedic perspective. This was not in line with the findings of Mr Mitchell nor Mr Boston however appeared to be a platform for Professor Schapira, whom in his letter stated that he had concerns that the Claimant “suffers from a primary underlying myopathy, probably of a dystrophic type.” In his letter, Professor Schapira recommended a number of tests to establish whether the Claimant had a myopathy including blood tests to establish creatine kinase levels and genetically analyse he Duchenne gene, EMG, and muscle biopsy.

In September 2013 Dr Orrell provided his comments on the recommendations made by Professor Schapira. He confirmed that he has not previously suspected any evidence of a muscular disorder and did not consider there to be any evidence of an underlying neurological condition.

The Claimant nevertheless underwent the testing recommended by Professor Schapira. A blood test to assess creatine kinase levels, an EMG and MRI scan of the brain.

In February 2016, the stay was lifted by Master Cook and directions were laid down in respect of witness statements and expert evidence and a trial window was listed between January and April 2017.

An ex-parte application was made by the Second Defendant in May 2016 for an extension in respect of quantum evidence.

In a report subsequent to the testing he recommended, Professor Schapira noted that the blood test results, EMG and Brain MRI were all normal. Professor Schapira then advanced a new argument that the Claimant may be the carrier of a defective gene due to being the product of a consanguineous marriage.

Dr Lewis and Dr Orrell prepared a joint statement in July 2016 after the results of the tests were provided and agreed that there was no evidence of the presence of an underlying neurological condition. A further joint statement was prepared with Professor Schapira in October 2016.

In December 2016, The Honourable Mr Justice Mitting ordered that there should be a 3-way examination of the Claimant by the neurologists followed by a further joint statement. A new trial window was listed between January and March 2018.

The final joint statement of the neurologists was completed in February 2017. The Claimant advised that during the three way examination the experts were all squabbling. The orthopaedic experts then provided their final joint statement with the benefit of the neurology joint statement, with Mr Boston and Mr Mitchell largely in agreement.

The orthopaedic experts provided that they did not have experience in treating patients with prolonged recumbency, which they thought may have been the cause of the Claimant’s presenting condition. Following this joint statement further evidence was obtained by the Claimant from Dr Outhwaite, Rehabilitation expert, to address the issues of causation and quantum in respect of prolonged recumbency and the effect of rehabilitation.

Dr Outhwaite opined that the Claimant’s presenting condition was explained by prolonged recumbency and lack of rehabilitation and he advised that he had seen cases where this has previously occurred in other patients. Dr Outhwaite further assisted by providing a report of quantum issues alone and determined that the Claimant was unfortunately unlikely to make any improvements even with the benefit of intensive rehabilitation.

An application was made by the Defendants in April 2017 for permission to rely on psychiatric evidence

The Second Defendant made two further ex-parte applications in May and July 2017 to vary directions. All three ex-parte applications were immediately objected to by the Claimant but an application was made by the Claimant in July 2017 which was listed to be heard at the same time as the First Defendant’s application for psychiatric evidence. At the hearing the judge provided a very specific order in relation to psychiatric evidence, that is should be to address quantum alone and not causation issues, and granted permission for the parties to obtain/rely on rehabilitation evidence.

The Second Defendant instructed Dr Harriss to reply to the rehabilitation evidence of Dr Outhwaite. The Claimant was examined however they chose not to serve the evidence.

In respect of Quantum evidence, the Claimant relied on quantum evidence from Ms M Sargent (Care), Mr T Wethers (Accommodation), Mr P Jackson (Employment), and Mr M Holt (Pension Loss). Ms Sargent’s evidence supported past care and assistance in the region of £150,000 and a future care recommendation in the region of £85,000 per annum. Mr Wethers’ evidence supported the purchase of a property in the region of £800,000. Mr Jackson’s evidence supported past loss of earnings in the region of £200,000 and future losses in the region of £28,000 per annum. Mr Holt’s evidence supported a total pension loss in the region of £200,000.

The Claimant also relied on the evidence of Mr J Sauer (Psychiatrist). He opined that there was little in terms of treatment that would benefit the Claimant and did not consider the Claimant to be suffering with a psychiatric disorder. Mr Sauer had the benefit of consider the First Defendant’s evidence from Dr Issacs before finalising his evidence. Mr Sauer did not agree with Dr Issac’s diagnosis of a conversion disorder.

The Second Defendant relied on quantum evidence from Ms H Tuckfield (Care), Mr A Nicholl (Employment) and Mr S Fisher (Accommodation).

The matter was proceeding towards trial in January 2018 with a Joint Settlement Meeting (JSM) arranged for 3rd November 2017. The Claimant prepared an updated Schedule of Loss for the purposes of the JSM and served this in advance of the meeting.

In advance of the JSM, the First and Second Defendant confirmed that they had reached an agreement in relation to their respective liabilities for the Claimant’s damages and costs, the basis for the First Defendant’s Part 20 claim against the Second Defendant. This resulted in only the Claimant and Second Defendant needing to attend the JSM.

Joint Statements from the care experts, accommodation experts and employment experts were all received just before the JSM.

At the JSM the matter settled for £6,428,290 broken down as a lump sum of £2,640,000 and a PPO of £53,035, index linked to AHSE 6115 80th Centile, per annum with a multiplier of 71.43.

Daniel Slade
Express Solicitors

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