Catastrophic injuries are best left to experts

Introduction

The case of Mr Smith (not his real name) raised some interesting issues, for instance with regard to the quantum settlement. However, I suggest that overall it shows the importance of specialists handling catastrophic injury work. There is a danger that non-specialists handling catastrophic claims could recover materially less for their clients, resulting in claims of professional negligence.

The accident

On 7 December 2004, Mr Smith was riding his bicycle along a country road towards Coven in Staffordshire, when a car being driven by the defendant in the same direction drove into his rear. The defendant was convicted of driving without due care and attention on 11 November 2005.

As a result of this collision, Mr Smith was rendered a C6 tetraplegic. He has suffered from chest problems since then. He remains ventilated at night.

Initial progress of the claim

Mr Smith initially instructed a firm that performs general personal injury work. This firm does not appear to claim any particular speciality in catastrophic injury work.

The claimant started proceedings on 10 March 2006. On 5 April 2006, the defence was served, which denied liability (see below). The claimant applied for an interim payment of £50,000 on 10 April 2006. The defendant agreed to this on 5 May 2006. On 15 November 2006, the defendant requested a joint settlement meeting, which took place on 25 January 2007.

The defendant made an offer of £3.5m, which was increased to £3.75m. This was not accepted and no counter proposals were put forward by the claimant's solicitors. On 1 February 2007, the defendant put forward a Part 36 offer of £3.5m. This offer was rejected on the basis that it was too early to settle, although the claimant's solicitors had agreed to attend a settlement meeting less than two weeks before.

On 20 March 2007, the claimant's solicitors applied to court for £700,000 as a further interim payment.

In late March 2007, it was clear that Mr Smith was unwell. His chest complaints were once again causing him difficulties. The defendant made an interim payment of £50,000 on 3 April 2007. The claimant's application was heard on 25 April 2007.

An order was made in the terms sought. The court also put in place a timetable to take the claim to trial for five days starting on 6 December 2007. This was to be a full trial of liability and quantum, with a timetable that included the usual provisions for exchange of lists, witness statements, expert reports, joint expert statements and schedules of loss. The timetable to trial for all of this work was to be completed in just over seven months, so there was little room for slippage.

Mr Smith used his interim payment to purchase a house in his home village of Coven, as well as to fund his ongoing care and case management requirements. He returned to the Stoke Mandeville spinal injuries unit to recover from his bout of ill health. He remained there until after his claim was settled.

Stewarts' involvement

We were instructed to take over conduct of the matter in July 2007. The file was transferred to us in stages by Mr Smith's previous solicitors. However, by the end of August, we had the expert reports and inter partes correspondence. We did not receive the former solicitor's attendance notes, solicitor/client

correspondence and funding documentation until some time later.

On receiving the files, it seemed to me that there were immediate problems:

• No proper investigation of liability had occurred.
• The expert evidence was inadequate.
• The trial date had not been notified to any of the lay or expert witnesses.
• The timetable had not been complied with, apart from disclosure of the claimant's list of documents. This meant that no witness statements

had been served. The only quantum expert reports that had been served had been produced in 2006, prior to the claimant's recent ill-health, and were inadequate because they were out of date.

Liability

The defence alleged that Mr Smith had not been visible to the defendant because he had not been displaying lights or reflectors on his bicycle. It was not in dispute that there was no rear light attached to Mr Smith's bicycle following the accident. It was unclear to me why this issue had not been addressed already. It seemed to me, with proceedings having begun in March 2006, that there was no particular reason why this issue could not already have been decided at a liability trial before August 2007.

The police had found fragments of plastic at the scene of the accident. A police officer stated in the accident report that he believed the fragments to be the remains of a bicycle light. However, in the three years since the accident, neither our predecessors nor the defendants had requested sight of the fragments that the police held. There was evidently a need to subject them to expert analysis.

With regard to lay witness evidence, in my view the witnesses to the accident had not been properly proofed. There were no witness statements from the investigating police officers. There were only a small number of brief witness statements on the file for those liability witnesses who had been contacted. These statements had not been served.

As the claimant was alleged not to have been visible at the time of the accident, the clothes that he had been wearing were important. Our first step was to obtain the physical evidence that the police held, which included the claimant's clothes, as well as the plastic fragments. All of the lay liability

witnesses, including the police officers, needed to be contacted and proofed.

A great deal of time had elapsed, so

I was concerned that some useful

primary evidence might have been lost. However, although I felt that liability should have been finalised some time earlier, I was pleasantly surprised at the amount of evidence that I was able to uncover.

No liability expert had been engaged by my predecessors and nor had they requested permission from the court to rely on any liability expert evidence. The expert that I engaged was able to positively identify the fragments found by the police. He went to the shop where Mr Smith had purchased his bicycle light. He purchased the same model of light to illustrate the similarity with the reconstructed fragments.

The defendant admitted to me in open correspondence prior to settlement that the fragments found by the police constituted the remains of a rear bicycle lamp. However, no further concession was made by the defendant's solicitors. They continued to maintain that the lamp did not belong to the claimant's bicycle.

The eventual settlement was obtained on the basis of a concession from the defendants of 100 per cent of liability.

Trial timetable

As I have mentioned, when the bulk of the file was delivered to us in late August 2007, there were just three months until the trial. My predecessors had not complied with the timetable that had been put in place in April

2007. There appears to have been an assumption that the claimant's ill health in mid-2007 would justify asking for an adjournment of the trial. However, no steps had been taken in this regard prior to me receiving the file. As it turned out, this was an unwise assumption to have made.

Once I received the file, I immediately applied to adjourn the trial, given the amount of preparation that was required in such a short period of time. I was also concerned that no witnesses had been informed of the trial date and that there would therefore be difficulties for them attending the trial. However, it transpired that everybody would have been able to attend. The application was opposed by the defendants, who, unsurprisingly, were keen to ensure that the case went to trial as soon as possible.

Perhaps surprisingly, this application was refused by a high court judge, who took the view that none of the experts had provided a view that December 2007 was too early from a clinical point of view to hold the trial. While it was accepted by the judge that there was a lot of work still to be done, he took the view that this would just have to be completed in the time available.

A new timetable was subsequently put in place with very demanding deadlines. During this period we needed to:

• Obtain full loss of earnings and case management documentation.
• Obtain statements from 25 liability and quantum witnesses.
• Obtain a report from the aforementioned liability expert.
• Obtain five further quantum experts' reports.
• Obtain two further experts' reports
• in relation to periodical payments, in addition to obtaining evidence from the nursing care expert to assist with this subject.
• Seek updates of the reports from the pre-existing four experts engaged by my predecessors.

This was a vast amount of work to complete in such a short period of time. About 12 fee earners were involved in this case under my direction. As a specialist firm, we were able to dedicate the specialist personnel necessary to ensure that this case proceeded to trial with all of the required evidence in place.

Settlement meeting

A settlement meeting was arranged for the earliest possible opportunity once the claimant's evidence was in position. The settlement meeting took place on 22 November 2007. Prior to this meeting, the defendant's position had been that the earlier offers it had made were its final offers, which would not be exceeded.

For the purposes of the settlement meeting, no discount was requested by the defendant on the issue of primary liability or contributory negligence.

The claimant rejected a lump sum offer of £5m '“ £1.25m higher than the defendant's supposed highest offer. However, given the claimant's significant care requirements and the uncertainty over his life expectancy, the claimant indicated that settlement in the form of a periodical payment was preferred. The defendant requested that the claimant make two offers with respect to periodical payments '“ one based on an earnings index and another based on the retail price index (RPI). In order to produce these two offers, the views were sought of the financial adviser whom I had engaged to assist the claimant.

The level of the periodical payment indexed to the RPI had to be sufficiently high to offset its shortfall, relative to an earnings index, over the rest of the claimant's life. Settlement was achieved on the basis of a £1.35m lump sum, plus £280,000 a year for life indexed to the RPI, guaranteed for a period of five years in the event of the claimant's death. This would mean that the claimant would receive damages totalling £6.8m over the course of his life, based on an estimate of the claimant's life expectancy by his expert.

Conclusion

A large amount was achieved for Mr Smith in a short period of time. This has provided him with a secure basis for his future. If the case had remained in the hands of non-specialist solicitors, I do not believe that the result would have been as favourable. Until the gaps in the evidence were addressed, a proper settlement of Mr Smith's claim could not have been achieved. As a specialist firm, we were able to quickly identify the further work that was required.

In conclusion, there is a danger that non-specialist firms might:

• recover materially less than they ought to achieve for clients with catastrophic injuries; and/or
• fail to properly advise such claimants on periodical payments.

Either eventuality could result in a professional negligence claim against a non-specialist.