News Category 3
McMahon v Rouse - Mary Kay, Spencers Solicitors
10/07/19. Case name: McMahon v Rouse. Court name: Nottingham. Accident date: 01/05/2017. Settlement date: 22/11/2018. Total gross settlement: £80,500.00.
Background
The Claimant was the front seat passenger in a vehicle being lawfully driven along the main carriageway by her partner. The Defendant emerged from a side road at 60 mph and collided with the passenger side of the Claimant's vehicle; the combined impact speed was in the region of 120 mph.
As a result of the collision, the Claimant suffered a Colles type fracture to her right dominant wrist which has ongoing mild stiffness and a serious injury to her right leg. This consisted of a compound, comminute tibial shaft fracture with associated fibula fracture, a Ilizarov frame was applied. There is a significant bowing/ shortening of the leg, the ankle remains stiff and ongoing intrusive symptoms of pain and stiffness/ difficulties on stairs and uneven ground. The leg injury has resulted in visible scarring which has required scar revision surgery.
The Claimant also suffered extensive soft tissue injuries; to include injury to her cervical, thoracic and lumbar spine, requiring physiotherapy treatment; extensive internal and external pain, bruising and swelling to her abdomen from the seatbelt; lacerations to her forehead and extensive bruising around both eyes resulting in a likely possibility of post-concussion syndrome leading to headaches, dizziness and panic attacks, impaired memory and concentration; along with psychological issues requiring extensive CBT treatment. The psychological symptoms consisted of anxiety, low mood and depression, vivid nightmares, passenger and driver anxiety and concerns regarding the scarring to her leg.
The Claimant required a significant amount of care and assistance; particularly in the first few months following the accident and relied on her family for help with all aspects of personal care; meal preparation and lifts to/from appointments.
The Claimant was unable to drive following the accident and incurred travel costs to/from appointments; university and work.
The Claimant also had time off university and work following the accident.
At the point of settlement, the medical evidence was inconclusive and further evidence had been recommended.
Liability
The Defendant was prosecuted for driving without due care and attention and the Defendant’s insures dealt with the Claimant’s claim as she was a passenger. No formal admission of liability was made.
Quantum
Contrary to instructing solicitors advice the Claimant wished to settle her claim. Negotiations were entered into, resulting in a settlement of £75,000.00 net of £5,500.00 received on account.
Solicitors for the Claimant: Mary Kay of Spencers Solicitors Limited
Insurers for the Defendant: ERS Syndicate Services Limited
Image ©iStockphoto.com/keesitt
Fixed recoverable costs are restricting smaller firms’ ability to offer services - Phil Sherwood, President of CILEx
28/06/19. The introduction of fixed recoverable costs (FRC) for low-value personal injury cases has restricted smaller law firms from offering their services to the public and this will be made worse by plans to extend FRC.
June saw the close of the Ministry of Justice (MoJ) consultation on extending FRC to non-injury cases as well as, in some instances those worth up to £100,000. In our response, CILEx made clear that the government needed to consider the wider impact of FRC on the availability of legal advice to support people needing the justice system.
Since the introduction of FRC, we have seen a distorting of the market for legal services, which needs a healthy mixture of providers to function effectively.
Small local firms and specialists have been forced to turn away personal injury clients because they cannot handle the volume of claims required to achieve a balance between profitable and unprofitable cases. This has left consumers with a limited choice of either larger national providers which handle cases in bulk or being forced to represent themselves. Ultimately the consequence is a reduction in both quality advice and access to justice.
In 2009, we saw the test set by Lord Justice Jackson in his costs report that “if litigation becomes uneconomic for lawyers, so that they cease to practise, there is a denial of justice”. It went on to add: “that FRC should be reserved for only the least complex cases, and restricted to cases below a realistic value level, to avoid exacerbating these understandable concerns.” Clearly, on Jackson’s own terms, even the use of FRCs at current levels present a considerable problem.
The MoJ consultation also fails to take account of the Competition and Markets Authority (CMA) review of the legal services market, which has led to regulatory efforts to encourage price and service transparency. Pursuing significant interventions in what is an independent market should be a last resort, and without considering frontline regulators’ active efforts to improve information for consumers, the consultation is fatally flawed.
In the wake of cuts to legal aid, court closures, and systemic underfunding of justice, the government has abdicated its responsibilities to ensure meaningful access to justice, leaving legal professionals working in personal injury to go above and beyond for clients who find it difficult to meet legal costs. Conditional fee agreements, damages-based agreements and pro bono work cannot be relied upon to secure long-term sustainability of the legal services market and especially not at a time when fixed recoverable costs are making it financially unviable to take on some cases.
We would like to see fee rates that are flexible enough to accommodate unexpected complexities that arise in individual cases and want to see judges have discretionary powers to award modest cost increases, especially in cases that are more complex than they look at the point of allocation or where circumstances add additional costs.
The introduction of fixed recoverable costs has had a detrimental impact on the effective functioning of the legal services market. A healthy market is one where the public have a choice of specialists and generalists, local and national firms, offering their services to the public.
As it stands FRC are preventing the operation of a competitive marketplace and ultimately that drives down not only quality but access to justice.
Phil Sherwood is President of the Chartered Institute of Legal Executives (CILEx)
Image ©iStockphoto.com/DNY59
Exploring the impact of personal injury on mental health - Tom Fitzgerald, Managing Director of National Accident Helpline
24/06/19. For years, we have known that the effect of a personal injury extends beyond the physical hurt, but naturally, the focus remains on the physical injury itself.
But as attitudes continue to change, there is an increasing recognition of the importance of protecting our mental health, and this is something which is hugely important at a time of trauma like an accidental injury.
The team in our busy Legal Support Centre speak to people every single day who are struggling after an accident – often not just physically, but mentally too. They might be struggling with the fact that they are suddenly unable to run around after their children, take them on the school run or care for them as they usually can. Or they might be stressed and worried when they find they are suddenly unable to go to work and earn a living for weeks or months on end.
Having heard so much anecdotal evidence from our customer calls, we decided to commission some thorough research into exactly how people felt, mentally and physically, following an accident.
We were shocked, but not entirely surprised, by the findings – particularly when it came to investigating the true mental strain of the experience.
Naturally, a lot of the focus of an accident falls upon the physical injuries suffered, and the process to recover from them. But less is known and documented about the mental struggles which people go through – from not being able to look after their children to the struggles with anxiety and depression which some experience.
More than 1,000 people who had been injured in accidents which weren’t their fault – including road accidents and accidents in the workplace – were questioned for our research.
We found that almost three quarters – 72% - had struggled with mental health issues following their accident. People said they had experienced anxiety (34%), stress (35%) and depression (18%), while one in five had struggled to sleep. Others were troubled by panic attacks (13%), nightmares (13%), paranoia (8%) and PTSD (7%).
And the mental strain of a personal injury isn’t just felt by the person who is injured – it’s also felt by their spouses, partners, children, family and friends. Of the 1,000 injured people in our study, more than a third told us that their accident had had a negative effect on their relationships.
Financial pressure also plays a part: over half of those surveyed had lost income (55%) or worried about losing their job altogether (57%) and nearly two thirds worried about their work performance (63%).
People also told us in their own words about how their accident had changed their life – feelings of frustration and inadequacy were clear, with one injured person telling us: “All I needed was a magic button to take the stress away”.
Taking the insight we had gained, we sought the advice of experienced healthcare professionals to ask about their experience of helping people following an accidental injury. How did people cope and what was the process for these professionals to help them?
We spoke at length to five key healthcare professionals – a mental health nurse, clinical psychologist, physiotherapist, carer and occupational therapist – about their experiences of working with people after an accident.
Clinical Psychologist Dr Claire Freeman explained the extent of the mental impact which an accidental injury can have.
She said: “One in three people experience PTSD after a stressful or traumatic event and they might come with a number of different symptoms – they might be feeling quite anxious, they might be experiencing sleep difficulties which can be as severe as insomnia.
“Some people might be struggling to even leave their home, they might be struggling to go to work.”
Dr Freeman’s advice was that being able to simply talk through what had happened without being asked a lot of questions was often a validating experience for injured people.
Physiotherapist Sarah Clifford said the injured people she worked with often felt vulnerable after the shock of their accident. She said: “I think there’s a vulnerable feeling at the beginning. Because you’ve had a big accident, it hasn’t been your fault, and you feel like the world’s against you, don’t you? You’re in pain and you shouldn’t be, because you were just on your way somewhere.”
GP Dr Hilary Jones has been advising the nation on health matters on television over the past 30 years and is working with us to share our findings. He agreed that now was the time to keep the conversation flowing and open when it comes to mental health matters.
Dr Hilary said: “Most people will be touched by stress, anxiety or depression at some point in their lives, so of course we should talk about it.
“This old-fashioned idea that unless you can see an injury like a broken bone and get sympathy from that, it’s not worth talking about, is completely old hat. It’s very difficult to forget those negative thoughts, but they’re there and unless they’re addressed, they will linger.
“So the physical injury and the mental health issues that come with it are somehow inextricably bound together.”
With 25 years’ experience in personal injury claims, we are well aware of the stigma around the industry and the idea of making a claim. With this research, we want to show that the impact of an accidental injury can be significant and that it’s ok for a person who has been injured to want to get back to the position they should have been in.
If our research helps even just one person to understand how important it is to seek help for their recovery, then we will have done our job.
Tom Fitzgerald is managing director of National Accident Helpline
Image ©iStockphoto.com/RapidEye
Summary of Recent Cases, June 2019
15/06/19. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Sudhirkumar Patel v (1) Arriva Midlands Ltd (2) Zurich Insurance Plc [2019] EWHC 1216 (QB)
The defendants applied successfully under s.57 of the Criminal Justice and Courts Act 2015 ("the CJCA 2015") for a personal injury claim to be struck out as being fundamentally dishonest.
The claimant had been involved in a significant collision with a bus owned by the first defendant, and suffered a cardiac arrest and a brain haemorrhage. Several years later, he issued an action with his son acting as his litigation friend, claiming that he remained significantly disabled. He instructed an expert neuropsychiatrist to examine him, who found him almost entirely unresponsive and without arm or leg movement. The son told the expert that his father did not communicate and required around-the-clock care. The expert found no neurological reason for the claimant's condition, but diagnosed him as having a severe conversion disorder arising from the collision and assessed him as lacking capacity to litigate. An expert neurologist instructed by the defendants examined the claimant some 20 months later and found...
Image ©iStockphoto.com/spxChrome
Inglis v MOD [2019] EWHC 1153(QB), Peter Marquand sitting as a Deputy High Court Judge - Robert O'Leary, Crown Office Chambers
11/06/19. In Inglis v Ministry of Defence, a former Royal Marine was awarded £545,766 for his noise-induced hearing loss and tinnitus.
Harry Steinberg QC and Robert O’Leary appeared for Mr Inglis.
Mr Inglis joined the Royal Marines aged 17 and left in 2012 at the age of 32, having sought voluntary discharge. He was exposed to very loud noise from thousands of rounds of ammunition, grenades and aircraft.
Mr. Inglis’ hearing loss was noticed by medical officers when his hearing was tested, and Mr. Inglis was advised that he should keep away from noise, but no steps were taken to enable him to do so.
The MoD contended (1)that there can be no loss of earnings in circumstances where Mr Inglis had found employment after he was voluntarily discharged and (2) that he was only marginally disabled and so a Smith v Manchester lump sum award should have been made rather than the loss being calculated by a conventional multiplier/multiplicand method, relying on Billett v MOD [2005] EWCA Civ 733.
At trial, the judge accepted Mr. Inglis’ evidence that he had left the Marines because he had sustained noise-induced hearing loss and he was concerned that continued service would cause further damage. The judge found that Mr Inglis would have served his full 22 year term and that when he left he had 7 years remaining.
The judge also found that Mr Inglis’ hearing loss and tinnitus caused difficulties in his work environment including in hearing conversations in meetings or speaking on the telephone. Hearing aids improved the situation but not by much. These adverse effects impacted on his normal day-to-day activities. His disability was substantial and affected the kind of work which he could undertake. Mr Inglis therefore met the definition of disability within the Ogden Tables.
The judge accepted that a multiplier/multiplicand method is conventional approach to calculating future loss of earnings and should normally be used, even in less severe cases of disability. In this case he was able to (a) make findings as to Mr Inglis’ annual earnings on both an uninjured and injured basis, (b) determine that Mr Inglis was disabled within the meaning of the Ogden Tables and (c) that that disability has a particular impact of his ability to carry out his day-to-day work. The judge did however adjust the reduction factors to be applied to the multiplier to take account of Mr Inglis’ individual characteristics, he was notably hard-working, his disability did not affect his mobility and had been in work since he had left the Marines.
The judge made the following awards:
Image ©iStockphoto.com/nicolas_
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
