Legal Watch:Personal Injury2nd October 2014Issue: 034

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

In This Issue:

• Causation/pre-existing condition• Civil procedure• Civil procedure rules

Causation/pre-existing conditionThe case of Reaney v University Hospital of North Staffordshire NHS Trust and another (2014) EWHC 3016 (QB) deals with what is effectively an ‘eggshell skull’ case, where an already vulnerable claimant’s condition was made much worse by the defendants’ negligence.

In 2008, when she was 61, the claimant contracted transverse myelitis, a very rare inflammatory condition causing damage to the spinal cord. The condition left her paralysed below the mid-thoracic level and with no control over her bladder or bowels. During her hospitalisation, she developed a number of deep pressure sores with consequent osteomyelitis (infection of the bone marrow), flexion contractures (abnormal shortening of the muscle tissue) of her legs and a hip dislocation. The combined effect of those disabilities was that her lower limbs adopted a “windswept” configuration, causing her to fall from an upright sitting position to the left. She was currently only able to sit out in her wheelchair for four hours at the most; otherwise she remained in bed. The defendants had admitted negligence in respect of the pressure sores and their consequences.

Finding in favour of the claimant the High Court judge held that it was apparent that the pressure sores and their consequences had made a significant and material difference to the claimant’s physical well-being and her care needs. Without them, she would have had a much better quality of life, spending her waking hours out of bed in a standard wheelchair (with the ability to maintain a good spinal posture and balance) which she would have been able to self-propel. She could have undertaken a few basic household tasks and would have been able to get out and about much more than was possible in her present condition. While she was inevitably going to be doubly incontinent, her bowel management would have been better and she would not have required the urethral catheter which she used now. But for the development of the pressure sores in hospital and their consequences, she would have required no more than roughly seven hours of professional

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care each week until the age of 70; she now required two carers on a 24/7 basis, a requirement that would continue for the rest of her life. Further, she and her husband would need to move to a larger property to accommodate the carers. They would also need a larger vehicle. While the court accepted the general thrust of the trusts’ submission that in law a defendant could only be liable to compensate a claimant for the damage it had caused him or to which it had materially contributed, this case should be seen as a reflection of the principle that a tortfeasor had to take his victim as he found him. And, if that involved making the victim’s current damaged condition worse, then the tortfeasor had to make full compensation for that worsened condition. On the evidence, the trusts’ negligence had made the claimant’s position materially and significantly worse than it would have been but for that negligence. She would not have required the significant care package (and the accommodation consequent upon it) that she now required but for the negligence. Compensation should be assessed, hopefully by agreement, on that basis. The appropriate award for pain, suffering and loss of amenity was £115,000.

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Civil procedureThomas v Baker and another [Lawtel 29/09/2015] concerned an application to adjourn a trial one week before it was due to start.

The claimant/applicant applied for permission to amend her particulars of claim and to adduce new expert evidence in her personal injury claim against the second defendant/respondent insurance company.

The claimant had been seriously injured in a road traffic accident over four years earlier and had been rendered paraplegic. A trial date had been set for slightly more than a week after this application. A new issue had recently arisen in relation to the propensity of one of her hips to dislocate. The condition was rare and one which the experts had not foreseen. The current value of the claim was £8.5m. The hip displacement issue could have resulted in an award of a further 20 years of 24-hour care, at an estimated cost of £2m. A number of medical approaches to the issue were open to the claimant and she was due to meet with a surgeon who would advise her. One of second defendant’s key medical experts was out of the country until very shortly before the trial.

The second defendant contended that the claimant’s application placed it in a very difficult position in respect of understanding the case to be met, preparing expert reports in response to new evidence and assessing the impact of the new issue on the case and its value. The second defendant further submitted that the application should only be granted if the trial was adjourned.

The High Court judge held that no fault was attributable to either party in relation to the lateness of the issue arising. It would clearly have a very significant impact on the claim and, in order to do fairness to the parties, it was inevitable that the trial date would be vacated. It would have been unfair not to give the second defendant an adequate opportunity to consider and respond to such a significant issue. It would be equally unfair for the court not to have the benefit of the

clearest possible expert evidence. The unavailability of the second defendant’s expert witness was unfortunate, but there was not enough time and the trial was adjourned. The claimant was permitted to amend her particulars of claim, adduce further evidence and amend the schedules of loss. The second defendant was given liberty to serve evidence in response.

CommentWould this application have been dealt with any differently post Mitchell, pre Denton? It is possible that the judge could have been more concerned with the impact on court resources of vacating a trial so close to the fixed date. Could other work be assigned to the judge in the short time available? He may also have been less concerned with fairness between the parties which Denton has reemphasised. However, the serious nature of the medical issue which had arisen and the fact that the claimant could not have anticipated it probably means that the same order would have been made.

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Civil procedure rules1 October sees the introduction of the next stage of the government’s attack on whiplash (soft tissue injury) claims with amendment to CPR. The principal intention of the changes is to impose further control over medical evidence in cases brought under the RTA portal. Stage 2 of the protocol cannot be engaged unless the claimant has obtained a fixed costs medical report at a fee of £180. Any further medical evidence (for which the claimant requires justification) is also restricted to specified disciplines, at prescribed fixed fees, namely:

• £420 for a consultant orthopaedic surgeon

• £360 for a consultant in A&E medicine

• £180 for a GP

• £180 for a physiotherapist

• £30 plus the direct cost to the holder of the medical records to obtain medical recordslimited to £80 in total for each set of records required

• Addendum reports (save for consultant orthopaedic surgeons) are limited to £50

• Part 35 answers are limited to £80

The claimant will be justified in obtaining a second report only where the first fixed fee report has been sent to the defendant and recommends a supplementary report from the first expert or a further medical expert’s report.

If considered necessary, but only with the defendant’s authority, the insurer may now send, with the response to the CNF, the defendant’s account of the accident. The medical expert is then invited to consider alternative diagnoses and prognoses depending on which version of the accident is found to be true. The expert must not have been involved in or in any way become involved in the claimant’s treatment.

Pre-med offers have not been outlawed completely but the rules now make it clear that any such offer will have no costs consequences until 21 days after the defendant has been sent a copy of the fixed fee medical report.

These changes apply to cases where the CNF is submitted on or after 1 October 2014.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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