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Articles | Tue 19th May, 2020
Andrew Ritchie QC and Laura Begley secure a multi-million pound settlement 13 minutes before expiry of their Calderbank offer 2 days before a 10 day trial in a paraplegia case after two failed JSM’s and a mediation.
The claimant was just 18 years of age when she was collected from a party by a friend’s boyfriend who had been drinking, drove far too fast and lost control of the car on a country lane causing the car to roll over 4 times. The claimant, an unrestrained rear seat passenger was thrown out of the vehicle and suffered catastrophic spinal injuries rendering her a T5-6 complete paraplegic. She had total loss of power below that level including her trunk, pelvis, legs, pain, total loss of bladder and bowel sensation and control, impairment of respiratory capacity and sexual function. She tended to spasms particularly on transfers and in the evenings and was unable to perform wet transfers independently or to transfer herself from the floor were she to have a fall. She tended to pressure sores on her heels and because of her very marked kyphosis would not be a candidate for an exoskeleton.
The First Defendant driver was said to lack capacity and played no active part in the proceedings. The Second Defendant insurer never appointed a litigation friend on his behalf and admitted the negligence of the driver and that it would satisfy any judgment against the First Defendant. The Claimant relied on the EC (Rights Against Insurers) Regulations 2002 for a direct right of action which the Defendant had not specifically denied in its Defence and was therefore deemed to admit. Therefore any potential issue in relation to the First Defendant’s lack of capacity and failure to appoint a Litigation Friend fell away and was of no concern to the Claimant.
Primary liability was conceded and the Defendant engaged with the rehabilitation code and facilitated an early move to level access partially adapted accommodation but contributory negligence remained a live issue. The other rear seat occupants and front passenger had been seat belted and did not suffer severe injuries though they did suffer some injuries. The driver had not been seat belted and was ejected from the vehicle and suffered a serious traumatic brain injury. The parties obtained expert evidence in engineering and A&E evidence. The Claimant’s engineering evidence demonstrated that this was an older model car with no side air bags, the Claimant was seated on the outside of the rolls the Claimant’s neck and head would have been partially ejected during the four rollovers. The A&E experts accepted that if this were so, the Claimant would have been highly likely to have suffered a severe traumatic brain injury in addition to a cervical spinal injury probably resulting in tetraplegia. At two JSM’s and a mediation, the Defendant held the line that there should be a 15% reduction for contributory negligence. The Claimant offered 12.5%. When the matter failed to settle pre-trial the Claimant made a part 36 offer of 7.5% which the Defendant failed to accept. In final settlement negotiations the Defendant sought that the Order should reflect a 7.5% reduction for contributory negligence to enable it to make a set off from any NHS charges due. The Claimant declined.
The Claimant was a very young woman, still physically able to bear children, with a long life expectancy beyond the age of 70. She sought a stepped PPO from the outset of the claim to reflect the need for standby unobtrusive live in care and then to reflect the likelihood of deterioration in her condition as she aged. For the full course of the litigation (including a JSM and a mediation) until January 2020 the Defendant insurer declined to make periodical payments in spite of the claimant’s desire to have them, that there was disputed evidence on life expectation, together with the investment risks attendant on a lump sum. For some reason unfathomable to the Claimant the Defendant also declined a provisional award to reflect the risk of spinal syrinx, a risk that both spinal rehabilitation experts accepted was between 1 and 2.5%.
The major battleground between the parties was in relation to care. The defendant’s position broadly was that many paraplegics are independent for many years post event and do not need 24 hour assistance. The Claimant had ‘managed’ with much less than 24 hour care to date. By 2 years post accident, having started with live in care, she had about 38 hours of commercial care per week supplemented by ad hoc family care with her mother or boyfriend often staying overnight and there was evidence that she had in fact cancelled some carers hours especially in the evenings. Her case was that this was because they were effectively on top of her, there was insufficient room in the partially adapted rental accommodation for her to have any privacy. They did not have their own living quarters or kitchen quarters. Further that the current regime was restrictive rather than facilitative and fundamentally not safe because of the risks of falls during transfers together with the incidence of occasional but embarrassing bowel and bladder accidents which she patently could not clear up herself. She was having to ‘save up’ hours of care to attend talks she was giving with her local police force to children and students regarding the risks of drink driving. She was able to drive an adapted car but even with a mechanical hoist she struggled with putting her wheelchair in and out of it and this was very challenging if the weather were poor. The Claimant was becoming low and frustrated by her predicament. The Claimant sacked her case manager. A change in case manager several months pre-trial marked an increase in care provision several months before trial which was starting to have a beneficial effect.
The Defendant’s care expert suggested that the claimant needed:
The expert had not assessed the level of gratuitous care the family had been providing. Further, whilst recording the frustrations and limitations set out above with 5/6 hours of care per day given the position over 4 years post accident; still assessed a care need lower than the current provision. In addition she had not adopted the step changes proposed by the Defendant’s own spinal expert in terms of need for increased care with ageing. Another litmus test for the quality and independence of this expert was that whilst she provided for an increase in case management between care to age 45 and care to age 65 she did not increase it beyond age 65 nor (remarkably) for care in the last 3 years of life in spite of the shift from 7 hours per day to 24 hour care.
It was in this context that the third attempt to settle the case failed with the Defendant making an offer on stepped PPO’s which gave little margin above the base line of their expert’s recommendations on future care and case management although the parties were frankly quite close in relation to the appropriate lump sum. In the event, the second JSM failed as had the mediation, and the parties prepared for trial. In a final attempt to secure a settlement and avoid trial the Claimant made separate part 36 offers on each issue in the case and revised a previous part 36 offer on contributory negligence from 12.5% to 7.5%. The Defendant accepted the lump sum offer which included a capitalised element in relation to future childcare and second offer on running costs in relation to adapted accommodation (which had been close between the experts) and in relation to a provisional award. It did not accept the Claimant’s offer on contributory negligence or PPO’s. The Claimant then made a Calderbank offer in relation to the PPO which expired at 4pm before the trial was due to commence on the Monday (in fact listed from the Wednesday). In making the Calderbank offer the Claimant compromised on the dates for the step changes for the PPO so it was closer in line with the Defendant’s spinal expert evidence but maintained the need for live in care now, supplemented heavily as the Claimant aged. This was successful and the settlement was for a lump sum of £5.4m and PPO’s (rounded) of : £67,000 to age 44, £108,665 to age 59, £158,340 for life.
Andrew and Laura were instructed by Alex Brown of Dean Wilson LLP.
