FIGHTING FOR LIFE-CHANGING CARE

Fighting for and securing a client’s lifechanging care

In safeguarding a crucial long-term and full care package for a brain injured client, Slater and Gordon Lawyers faced extensive challenges and barriers in the case.

Here, we learn more about the many obstacles presented - and how, over the course of four years, the legal team successfully overcame all of them to ensure their client now has appropriate care provision for life

Slater and Gordon recently secured a multi-million pound settlement, approved by the court in 2022, for a cyclist who was hit on a roundabout suffering a catastrophic brain injury for which he will require life-long care and support on a 2:1 basis during the day.

Case background

The client, whose case was concluded by Nick Godwin, a specialist catastrophic injury solicitor at Slater and Gordon with over 20 year’s experience of life-changing injury work, was cycling around a roundabout on a bright, sunny day, when the defendant driver negligently entered the roundabout and collided with him, causing him to be knocked from his bicycle and hit his head on the ground with considerable force. It was clear from the outset, given the seriousness of the client’s injuries, that this was going to be a case of substantial value and a full legal team was quickly put in place, with Stuart McKechnie KC and Nicola Greaney being instructed from an early stage.

Allegations of contributory negligence

Nick’s client was not wearing a cycle helmet and, whilst there is no legal requirement so to do, the insurers alleged that he had negligently contributed to his accident because of the absence of such protection. The insurers also made additional allegations of contributory negligence, all of which were considered spurious. Although primary liability was admitted early on, the allegations of contributory negligence were heavily pursued. Had these allegations been made out, the client could have lost as much as 25 per cent from the value of his whole claim; including a 25 per cent deduction in the value of all future care and support. So important was it to seek to defeat these allegations, the legal team decided to ask the court to order a split trial on the issue of contributory negligence, to run concurrently with directions to a quantum trial; This was resisted by the insurers at an early court hearing but the judge found for the client, commenting that a split trial would “involve the resolution of an issue which may unlock a gateway to other resolutions especially potential settlement of this matter.” Expert evidence was commissioned from a leading consultant neurosurgeon and a highly experienced cycle helmet expert / engineer.

We have seen how much you have all fought for us against difficult defendants and we are grateful. Your work to understand our situation and the complexities of it has meant so much to us.

This evidence clearly suggested that wearing a helmet would have made no difference to the outcome of the client’s injuries, given the nature of the crash and the forces involved. But this evidence was disputed by the insurers experts so the matter was listed for a trial. just on this preliminary issue in 2021. Just a few weeks before that trial was due to take place, the insurers withdrew their allegations, resulting in 100 per cent liability on the part of the negligent driver and a 100 per cent recovery of damages.

Interim payments

An early voluntary interim payment was secured to enable a specialist brain injury case manager to be instructed who put together a multi-disciplinary team to support the client. His catastrophic brain injury caused him to experience extremely severe cognitive, communicative and neuro-behavioural difficulties, with his treating team being of the view that he required 2:1 support during the day, with a support worker on duty at night as well. Unusually, for a number of case-specific reasons, the client’s family wanted to provide the majority of the support for him and the case manager put together a team comprising a number of support workers, some of whom were close family members. This was initially accepted as appropriate by the insurers, but their position shifted as the case proceeded and it was argued that this sort of support regime was detrimental to the client. Eventually, Nick and the team were able to secure expert and lay evidence to satisfy the insurers that, whilst unusual, in the particular circumstances of this case family input was understandable and appropriate and, moreover, they should not be paid at gratuitous rates. As well as pushing hard for deductions for alleged contributory negligence, the insurers in this case also reached a stage where they declined to provide any further sufficient interim payments to enable the claimant to continue with the care regime in place. This stance was largely motivated by the insurers’ care expert, who asserted that one support worker was appropriate at all times during the day and night, despite the unpredictability of the client’s behavioural issues. With funds dwindling, there was no choice but to apply to the court for a substantial interim payment to safeguard the client’s care package. This led to a very hard fought, contested application; taking almost two days to hear the evidence and arguments. At the end of this hearing, the judge ruled in favour of the client, awarding substantial interim funds to ensure the client’s support team could remain in place as the case progressed towards a full trial. Masterful advocacy from Stuart McKechnie KC, one of the leading PI silks in the country, was critical to the success of this crucial application.

Issues between parties and settlement

The issue of the need for 2:1 v 1:1 care continued to be fiercely fought on both sides. So contentious was the issue that even when the parties came together for a joint settlement meeting (JSM), they could find no common ground on this issue. Whilst the balance of the claim was settled at the JSM, for a substantial lump sum, the issue of future care and case management remained very much alive. An initial approval hearing dealing with all items save for future care and case management was ably conducted by senior counsel, Nicola Greaney of 39 Essex Chambers. This case was hugely document-heavy and Nicola provided vital support throughout the case and offered meticulous advice and assistance at various significant stages. As the quantum trial approached (to deal with future care and case management), the insurers made a Part 36 offer at a much more competitive level than offers made at the JSM. This was considered carefully by the client and his legal team but the level of the offer was felt to be insufficient and rejected. A counter proposal, which allowed for 2:1 support to continue for the rest of the client’s life (together with associated case management) was put forward in response and accepted by the defendant shortly before the offer was due to expire. The settlement based on this offer was then approved by the High Court.

Outcome

The settlement figure is confidential but comprises a multi-million lump sum and a very substantial periodical payment order together with provisional damages and a variable PPO in relation to post traumatic epilepsy. The care package is protected for the duration of the client’s life.

Testimonial from client’s litigation friend

After a lengthy legal process was concluded with a positive outcome for the client by Slater and Gordon, his litigation friend said: “We have seen how much you have all fought for us against difficult defendants and we are grateful. “Your work to understand our situation and the complexities of it has meant so much to us and backing us up when you’ve been pressured otherwise we realise cannot have been easy but has been so appreciated.”

Assessment from Nick Godwin

“This was a very hard-fought case in which many key issues were defended robustly but, thankfully, our client succeeded on these key issues meaning his future is now more secure despite terrible injuries caused through no fault of his own. “To secure the best outcomes in a case like this takes a huge amount of work on the part of the lawyers but also a huge amount of effort on the part of the family, who are already putting in so much effort trying to come to terms with what has happened and are trying to look after their loved one. “I can't underestimate the importance of ensuring the instructed legal team in this specialist area of law have the requisite experience to run these cases to their full and proper potential. That is vital to ensuring the client receives the damages they need for the future. “It’s also crucial that as well as having a very experienced legal team, you also have an experienced and specialist case manager, who then builds the team around the client. "They need to understand the issues, how the client’s journey can be improved and where to focus rehabilitation, care and support. "Only with this expertise can the client’s future be safeguarded for the long term.”