Selecting suitable experts in personal injury litigation claims
Posted By : Bill On 05/02/2016 11:45:00
­I had two consultations a while ago with an expert, which reminded me of the importance of selecting suitable experts in personal injury litigation.

In one case, he and the defence opposite number have written a joint statement which is, I think, the best I have ever seen. I've come across many excellent ones over the years, but this stood out because they were genuinely looking at what is the best management and outcome for the brain injured claimant. As a result, there was no posturing, no reluctance to tell the truth (ie the whole truth), just a sensible discussion about how to manage rehabilitation and predict the remainder of life.

In the other case, where the young brain injured claimant is a member of an ethnic minority, the issue is how to manage the particular problems of a different way of life. Again, management of rehabilitation is important, because if you're not careful you can just pour money down the drain with no real result.

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Article for personal injury trade journal dealing with costs
Posted By : Bill On 05/02/2016 11:45:00
I've just written an article for one of the personal injury trade journals dealing with costs. It’s not a subject I have anything to do with, generally, but I was thinking about the impact on claimants’ costs of a properly prepared and presented major claim.

I find again and again that good presentation, which is an advocacy art, costs money. You just can't beat having highly skilled and experienced minds analysing the problems in a case, whether they are legal, factual or evidential, and devising a plan to make the best case possible. In the work I do, though, that does mean having a silk and a junior (because we have different roles, and the junior works at a lower hourly rate), as well as a good solicitor.

I had a settlement meeting recently in which the defendant was utterly unrealistic, but because we were all gathered together we could think about the way forward to trial. That meant a deep analysis of the true issues, the evidence which is currently available, and the further evidence we need. It made a pointless day worthwhile.
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Happy New Year
Posted By : Bill On 05/02/2016 11:45:00
An exciting new year ahead, but I always like to start by looking back.

2015 was good for me and my Chambers. I finalised about £50 million of catastrophic brain and spine claims, and enjoyed helping claimants and families, as always. My Chambers had a good year, moving to lovely new premises in Liverpool, so that our accommodation in Liverpool Manchester and Leeds is now state of the art.

I wrote quite a lot of articles, as usual, including selection of experts and the legal team, management of catastrophic injury claims, rehabilitation, creating plans for life, fundamental dishonesty in personal injury cases, and the standard to be applied to doctors when obtaining consent for medical procedures.

I gave a lot of talks, covering catastrophic injury topics, including for UKABIF, where I'm on the Board. It’s a great part of the learning experience, I think, to listen to good quality speakers.

Another year like that would do me very well! My Chambers are recruiting vigorously (still trying to take on only outstanding barristers or solicitors), and I hope we will go from strength to strength this year again.

The personal injury market is in for continuing hard times – there’s much concern over the small claims limit, but I'm afraid that it will be increased. Major claims will never cease, because major accidents will always happen, and doctors will continue to be negligent, but my worry is that, as lawyers find small claims less rewarding, they will hold themselves out as specialists in serious injuries – many are doing that already, to the disadvantage of the clients.

Happy New Year to you all!


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Williams v Bermuda Hospitals [2016]
Posted By : Bill On 05/02/2016 11:45:00
For those interested in clinical negligence, the Privy Council (effectively the Supreme Court) gave a very helpful decision in relation to causation on the 25th January 2016 - Williams v Bermuda Hospitals [2016] UKPC 4.

The cases of Bonnington, Hotson and Wilsher were considered and explained, in a way which I think makes it easy to see the different scenarios which can arise.

The particular point of importance is the use of the principle of material contribution.

Here's a summary: 

Mr Williams went to the emergency department of the King Edward VII Memorial Hospital in Bermuda suffering from acute appendicitis. The trial judge found that there had been negligence but that Mr Williams had not proved that the culpable delay caused the complications which followed. The Court of Appeal reversed the judge’s decision on causation.

The trial judge’s factual finding was that the failure to order a scan on an emergency basis led to a delay of between 4 hours 15 minutes and 2 hours 20 minutes in the start of the relevant operation.

The Board of the Privy Council started by analysing the case of Bonnington, decided in 1956. In that case, the claimant In Bonnington the claimant contracted pneumoconiosis from the inhalation of dust containing minute particles of silica; most of the dust originated from the operation of pneumatic hammers, but some of it escaped from swing grinders. The former involved no fault on the part of the employers, but the latter resulted from a breach of statutory duty. The House of Lords started by re-stating that the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury. Turning to causation, though, they held that causation was sufficiently established because the claimant’s disease was caused by a gradual accumulation in his lungs of minute particles of silica and, if that material comes from two sources, it cannot be wholly attributed to one source or the other. It is not correct then to ask which was the most probable source of the respondent’s disease, the dust from the pneumatic hammers or the dust from the swing grinders? The source of the disease was the dust from both sources and the real question is whether the dust from the swing grinders materially contributed to the disease. As the dust from the swing grinders did contribute, causation was established.

What is a material contribution must be a question of degree, but it must not be negligible.

They then went on to compare and contrast Hotson v East Berkshire Health Authority [1987] AC 750. The claimant fell from a tree and fractured his left femoral epiphysis. He was taken to hospital where, for several days, his injury was not properly diagnosed or treated. He suffered avascular necrosis of the epiphysis, leaving him with a permanent disability. The House of Lords held that the avascular necrosis must have been caused either by irreparable rupture of the blood vessels to the epiphysis at the moment of the fall, or by later pressure within the joint from bruising or internal bleeding. There was no room for finding that the avascular necrosis was caused by a combination of the two factors. The House of Lords held that, unless the claimant proved on a balance of probabilities that the delay in treatment was at least a contributory cause of the avascular necrosis, he failed on causation. As the judge had decided that the fall was the sole cause of the necrosis, the claim was bound to fail.

As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome. A claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant. In Wilsher v Essex Area Health Authority [1988] AC 1074, the claimant was born prematurely and, as a result of clinical negligence, he was given too much oxygen. He developed retrolental fibroplasia, which can be caused by various factors, one being an over-supply of oxygen. The House of Lords held that it was not enough to show that the defendant’s negligence added to the list of risk factors to which the claimant was exposed. They distinguished the case from Bonnington, because in that case the injury was caused by a single, continuous process.

In this case of Williams, the injury to the heart and lungs was caused by a single process, sepsis from the ruptured appendix. The sepsis developed incrementally over a period of approximately six hours, progressively causing myocardial ischaemia. The sepsis was not divided into separate components causing separate damage to the heart and lungs. Its development and effect on the heart and lungs was a single continuous process. Because that process continued for a minimum period of 2 hours 20 minutes longer than it should have done, the Board held that it was right to infer on the balance of probabilities that the negligence had materially contributed to the process, and therefore materially contributed to the injury.


Bill ­
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