News Category 3
Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585, [2019] All ER (D) 53 (Apr) - Laura Johnson, 1 Chancery Lane
06/06/19. The Court of Appeal upheld the first instance decision that although a surgeon who had repaired the appellant's hernia using an abdominal mesh had breached his duty by providing her with inadequate information about alternatives to that procedure, the breach had not caused her injury or damage because she would have opted for the same procedure even if proper consent had been obtained.
Facts
The appellant underwent spinal surgery which used an abdominal approach. She later developed a significant post-operative abdominal hernia which was repaired by a surgeon using a mesh to support the abdominal wall. The appellant consulted the surgeon two years later when she was considering future pregnancy and wanted to know more about whether the mesh would pose any risks. He advised her about some risks and how they might need to be managed. She later consulted another surgeon, who told her that it was not advisable for her to become pregnant because of the presence of the mesh. She did not, in fact, go on to have any more children.
The appellant brought proceedings in the High Court pursuing a range of complaints. One of her claims was that the surgeon who repaired the hernia had not provided her with proper information about either the impact the use of a mesh might have on a future pregnancy or the alternative of undergoing a suture repair without the use of a mesh.
The High Court found that the surgeon had been in breach of his duty in two respects...
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Sister A Griffin v L Naylor - Helen Reynolds, Spencers Solicitors
28/05/19. Quantum: (RTA, driver) right side rib fractures, bilateral haemothoraces, fracture right ilium of pelvis, vascular dissection left vertebral artery in the neck, right transverse process fractures of C6 L1-L3 of the spine, upper thoracic and cervical haematoma, right shoulder injury, seatbelt bruising.
Settlement: £33,000.
In February 2016, the Claimant (62 at the time of the accident) who was the driver of the vehicle was involved in a head on collision with the defendant at over 70mph. The Defendant’s vehicle crossed over onto the wrong side of the road, and into collision with the Claimant’s correctly proceeding vehicle. The Claimant had little memory of the accident. The insurers on behalf of the Defendant admitted liability for the accident following sight of the Police report. The Claimant was airlifted to the Royal London Hospital with multiple injuries. She was in an induced coma for 10 days and spent 3 weeks in hospital. On discharge from hospital she was cared for by her convent. The Claimant, a religious sister, was unable to work for approximately 3 months, following which she worked reduced hours.
Quantum
As a result of the incident, the Claimant suffered from; right side rib fractures, bilateral haemothoraces, fracture right ilium of pelvis, vascular dissection left vertebral artery in the neck, right transverse process fractures of C6 and L1-L3 of the spine, upper thoracic and cervical haematoma, right shoulder injury, seatbelt bruising.
The claimant received 6 months of intense physiotherapy. The neck pain improved, although as numbness in her right shoulder resolved, pain in this area increased. She also suffered with tiredness and back pain, and she was restricted in how far she could walk. The medical expert commented that the injuries suffered were severe and caused significant pain and dysfunction for at least 3 to 4 months. Initially, the most severe injury was the internal jugular vein haematoma, which eventually settled without any serious injury to the brachial plexus. The fractures of the spine and iliac crest resolved, though she was left with pain in her lumbar spine and her right shoulder. Scans showed evidence of pre-existing degenerative change, which was considered to have been made symptomatic as a result of the high velocity accident. The prognosis was for the symptoms to settle within 2 years post-accident. However, the pain in the back and right shoulder continued, and as such she received a further course of physiotherapy and injection treatment to the shoulder.
In addition to her physical injuries, the Claimant also suffered psychological symptoms in the form of travel anxiety, avoidance, sleep disturbance, irritability, and a lack of energy and motivation. The Claimant’s symptoms fulfilled a diagnosis of Post Traumatic Stress Disorder for 12 months post-accident, followed by an Adjustment Disorder and Specific Phobia. A course of CBT treatment was recommended, which significantly improved the symptoms by around 2.5 years post-accident.
Although the Claimant continued to suffer minor symptoms in her shoulder area, and some ongoing travel anxiety, she chose not to seek further medical evidence.
Settlement was reached in the total sum of £33,000.00, which can be broken down as £7000.00 special damages including treatment fees and £26,000.00 PSLA. There was no claim for loss of earnings or any effect on future work, due to the Claimant’s position as a sister.
Liability Admitted: 9th February 2017
The claim was settled in October 2018 by way of acceptance of the Claimants Part 36 offer in the sum of £33,000
Helen Reynolds of Spencers Solicitors represented the claimant
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RB v Radford - Helen Reynolds, Spencers Solicitors
20/05/19. Road traffic accident: laceration to forehead, whiplash, minor head injury, post-concussion syndrome. Settlement: 7th August 2018.
On 14th June 2016 the Claimant (aged 30 at the time of the accident) was a front seat passenger in a Fiat 500 traveling around 20mph. A Seat Leon collided with the rear of the claimant’s vehicle, causing the vehicle to spin around. The claimant hit the left side of her forehead against the door, causing a deep laceration which was bleeding. In addition, she was also aware of severe neck and back pain. The emergency services attended the scene and had to cut the roof off the car in order to be lifted out by paramedics. She was placed on a spinal board and immobilised in a collar and was taken to the Accident and Emergency Department at Scunthorpe General Hospital. The Claimant was dazed and disorientated and drifted in and out of consciousness.
The Claimant underwent a CT scan of her head and neck and was kept under neurological observation for 2 days due to concerns regarding the head injury. The Claimant suffered with headache, dizziness and poor short-term memory and confusion. A further CT scan showed a small amount of blood on the brain however, no further treatment was required.
Liability was admitted by the Defendant.
Quantum
The Claimant was transferred to Hull where the laceration to her forehead was sutured under local anaesthetic.
She suffered with severe headaches and had little memory of the first 2 – 3 days after the accident. Following the repair of the laceration she was left with altered sensation and numbness on the left side of her forehead. She also suffered with intermittent problems with the vision in her left eye and was referred for Ophthalmological opinion.
The Claimant continued to suffer symptoms of post-concussion syndrome including headache, dizziness, short term memory problems, anxiety and fatigue. She remained under the care of her GP and was referred for physiotherapy treatment for her ongoing neck pain.
The Claimant took 3 weeks off work and was unable to attend the gym for 3 months. She also suffered with some intermittent flashbacks and nightmares which affected her sleep.
The symptoms of post-concussion syndrome, as a result of the minor head injury, were expected to resolve within approximately 12 months.
The Claimant was left with a scar to her forehead, 5cm in length. She wore a fringe and makeup to camouflage the scar but remained socially embarrassed. The altered sensation to her forehead was expected to settle within 18 months post-accident and the appearance of the scar was expected to improve, with conservative scar management, though would remain permanent.
The neck pain improved with physiotherapy treatment and was expected to resolve by approximately 12 months post-accident.
The claim was settled on 7th August 2018 by way of acceptance of the Defendants Part 36 offer in the sum of £20,000; PSLA £19,235.00 and Treatment costs £765.00
Helen Reynolds of Spencers Solicitors represented the claimant.
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Summary of Recent Cases, May 2019
15/05/19. 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
Shelbourne v Cancer Research UK [2019] EWHC 842 (QB)
The Claimant was injured at her work Christmas party. It was a party for staff and guests which had been organised by an employee. She was approached by a visiting scientist on the dancefloor who, having drunk alcohol during the evening, attempted to lift her off the ground. When he attempted to do so, he dropped her and she sustained a serious back injury. The Claimant argued that her employer was liable for her injuries either because of its own negligence or because it was vicariously liable for the visiting scientist's actions. At first instance, the claim was dismissed on the basis that the Defendant had not breached its duty of care and that the Defendant was not vicariously liable.
On appeal, it was held that the trial judge had been entitled to find that the Defendant had taken reasonable steps in the planning and operation of the party and had not breached its duty of care to the Claimant. In relation to the question of vicarious liability, it was held that the visiting scientist had not been required to attend the party and that he was not doing his laboratory work on the dancefloor. The Claimant's argument that the...
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The Impact of Costs Management on Detailed Assessment: The Rules in Practice - Joanne Chase, Clarion Solicitors
06/05/19. The Jackson reforms sought to control the cost of civil litigation. One mechanism of doing such was through the introduction of costs management. In the 2010 Review of Civil Litigation Cost; Final Report, Jackson stated that ‘Costs management is an adjunct to case management, whereby the court, with input from the parties, actively attempts to control the costs of cases before it. Effective costs management has the potential to lead to the saving of costs (and time) in litigation’
It wasn’t until April 2013 that the concept of costs management was introduced, and both civil litigators and the costs profession had to grapple with an unfamiliar ‘precedent H’ and learn how to forecast the likely costs that would be incurred in a piece of litigation. The impact of such a budget, however, was not felt until the conclusion of the litigation. Costs that had been incurred prior to the making of a costs management order were still subject to detailed assessment, and the receiving party had to show how their costs fell within the budget ordered by the Court...
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