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Jean-Yves Gilg

Editor, Solicitors Journal

Pick and choose

Pick and choose


The level of damages awarded in spinal injury claims is high and is increasing rapidly, but these figures can only be achieved by selecting the right experts. Paul Paxton considers professionals who could improve the chance of a successful outcome

Getting expert selection right, by way of both the most appropriate individual as well as the correct disciplines, is a fine art in itself. Done well, a substantial amount can be added to the claim; often many hundreds and indeed sometimes millions of pounds. Of course this does not mean that the claimant will get a windfall; only that their needs will be met.

The table below is taken directly from the Schedule of Loss that was drafted in the recently reported case of Callum Eriksson, who was accidentally run over by his father causing spinal cord injury ('SCI'). It is evident that the overall level of damages now being sought (and indeed recovered) is high and on the increase. These figures are not achievable without the right team of experts in place.


Opening gambit

At an early stage it is worth trying to broadly obtain evidence in respect of the key areas of the claim. These are likely to be: care, employment, accommodation and equipment. As the case matures and injuries plateaux further litigation experts can be added to the team.

So, what expertise might be required?

1. Lead consultant

From the outset it is essential to obtain a leading and, ideally, a practicing SCI expert. The consultant need not necessarily be a surgeon in the field (although on occasions this can be of value), but they ought to be well recognised within the SCI community and working out of one of the spinal centres of excellence, e.g. the Royal National Orthopaedic Hospital or National Spinal Injuries Centre, Mandeville.

While the lead expert should not be encouraged to stray from his or her area of expertise, invariably their experience will lead them to be able to have input and direction on a range of issues from accommodation and work through to equipment and care as well as private medical costs.

Practitioners should consider commissioning a report as soon as instructions to act are received, even where the accident may only have occurred a few weeks earlier. The reason for this is that it provides you with a good overview as to the nature of the injuries.

The disclosure of such a report is for tactical consideration but, given that the report is very helpful in enabling the insurers to set a provisional reserve, early release can facilitate speedy and significant interim payments.

2. Care expert

Although increasingly the courts are looking to appoint joint experts, this is an area where a joint instruction is dangerous and should not be consented to '“ save in exceptional circumstances. The primary reason for wanting a single expert is that so much is at stake for both sides that as a practitioner you would not want to be restricted in terms of the evidence obtained and disclosed. You would also not want to fetter any communications of a privileged nature between you and your expert that can sometimes occur where joint instructions are involved.

This doesn't mean to say that greater harmony might be achieved between the parties in their selection of care experts. Increasingly, protocols between firms of solicitors are being entered into and an important part of that process is to agree between respective organisations experts who pass the 'approved' status on both sides. That is not always possible and, for certain cases, may be undesirable.

In terms of the care expert, an issue does often arise as to the best core discipline for that expert: nursing or occupational therapy. Arguably the occupational therapist ('OT') steals the march when debates arise in terms of equipment, whereas where the care need is the more extensive (where nursing is also required), those with a nursing background come into their own. It may be that the level of injury itself is a relevant factor, i.e. the higher the spinal cord lesion the greater the disability, and the more likely the nursing expert is required; whereas, for lower level lesions, sometimes (but certainly not always) an experienced OT can provide the necessary input.

3. Aids and equipment

It is possible to obtain a combined care and aids and equipment report. Practitioners may decide to have separate experts, thereby avoiding any challenges to the expertise being provided. However, for lower level lesions, that may be an unnecessary expense and also one where the court, at the directions stage, may seek to impose restrictions.

The disability market has become increasingly sophisticated and it is because of this that often the OT does not have sufficient expertise to deal with some quite important and expensive items. It is for that reason that certain cases will cry out for a mobility expert to be introduced alongside the OT. Again, this may depend on the level of injury. In a case where you have a tetraplegic client with some, albeit limited, hand movement, it may be possible for them to drive; with expensive adaptations which will require specialist input.

Consideration should also be given to an IT expert to deal with a range of equipment that may assist the client, for example computer software; but also extending to assisting the accommodation expert in advising as to internal IT, e.g. automatic door opening systems.

4. Employment

SCI brings with it nuances that may not exist with other injuries. Specific research has been carried out through organisations such as the Spinal Injuries Association ('SIA'), setting out the rate of return to work and remuneration. The court's attitude to this expert seems to have gone full cycle. While significant attempts were made a few years back to avoid their input, increasingly the courts accept that in these larger value cases, particularly where there is uncertainty as to the client's current remuneration capabilities, it is appropriate to have expert input.

In Callum Eriksson's case, given his age and the significant level of his injury, it was not necessary to bring in such an expert as there was an agreement as to his limited capabilities and there was insufficient information available to enable expert reporting on what his likely earnings would have been 'but for' the accident.

In cases where you are concerned with the self-employed, or with complicated salary packages, it is likely to be the forensic accountant and not the employment expert who will be able to add the most value. Invariably the self-employed cases are complicated to access, both by way of correctly interpreting the accounts and making

projections of the likely development of a business now and 'but for' the accident. Again, there are only a limited number of experts in whom you would have confidence, both in making accurate assessments and being able to present their case to the court. Indeed, both employment and forensic accountancy may be needed.

5. Accommodation

Again this is a potentially big area of loss. In the vast majority of SCI cases new property will need to be acquired with additional adaptations to follow. The choice of expert is important. There are a well-known group of accommodation experts, although it ought to be said that their inability to reach a consensual approach between them is legendary!

This will be an issue that needs to be tackled going forward in the light of the recent decision of Eeles v Cobham Hire Ltd [2009] EWCA Civ 204, (see Solicitors Journal, 153/11, 24 March 2009), where the court adopted a cautious approach to interim payments in a case where a periodic payment was likely. The important task is to instruct an expert who will be well regarded by the court and who is able to assist with assessing:

a. the current suitability of the client's pre-accident home;

b. the need and cost of the adaptations; and

c. where possible, the reasonable acquisition costs of the new premises.

The latter, strictly speaking, can fall outside the accommodation expert's field.

Where property is being acquired for example in inner London the costs can be extremely high. A purchase cost of £1m (before adaptations are made) is certainly a possibility. In those cases the sensible approach would be to introduce a valuation expert to assess the reasonableness of the acquisition. A fluctuating house market is one capable of lending itself to expert analysis. Again, the courts often take some persuasion of the need for a valuer.

6. Additional medical experts

Do not lose sight of the fact that an SCI is more likely than not to have been accompanied by additional injuries. It is quite appropriate to instruct individual experts in relation to those injuries which may range from a neurologist (e.g. for brain injury), through orthopaedics to a physician.

Ventilator-dependent cases may require a respiratory physician. The inclusion of a physiotherapy report can be helpful, although other experts may comment on the benefit and cost.

Where paraplegia is concerned, particularly with an upper limb injury, it is vital to bring in an upper limb specialist from an orthopaedic background, given that the impact of a shoulder injury, through index trauma or overuse, can have knock-on affects on the care costs.

Don't forget your psychologist: clients' reactions to trauma vary enormously. Some are more robust than others. Suicide, though remaining unusual following SCI, is a feature (although the recent Dignitas case of Daniel James, whose parents helped end his life at just 23 after he was paralysed in a rugby injury, stands out as an exception to the rule). While the lead clinician will comment generally on the need for psychology (it is sensible to make provision for intermittent counselling and support), in more serious cases of a psychological/psychiatric reaction, additional expert evidence should be brought in.

7. Life expectation and periodic payments

In Callum's case there was over a 20-year difference between the parties as to the likely life expectation. Such a difference was only surmountable by utilising periodic payments under the Damages Act 1996, whereby an annualised payment for care for life is made instead of assessing the life expectation evidence. Consideration still ought to be given to instructing actuarial evidence on the point albeit that the courts are more likely to follow the opinion of the spinal expert than a statistician '“ and quite right too.

Expert input will be required to assess the merit of a periodic payment (from either a forensic accountant or independent financial adviser). Don't leave the commissioning of this evidence to the eleventh hour as the advice may affect your negotiation strategy.

Get it right

The right expert can add an enormous amount to a claim. Expert selection is in itself a skill not to be underestimated. Having identified your team, a whole book could be written on how to instruct the experts, court directions, report disclosure and joint statements, but that is for another day.

I end on a cautious note: do not be afraid to refer SCI cases to those limited number of practitioners with significant expertise in this niche field. Far too often we are asked by disgruntled clients to take over cases '“ the files do not always make for a pleasurable read! If, however, you do decide to press on out of your regular personal injury sphere, check the level of your indemnity cover!