Friday, 30 January 2015

Stewarts Law: helping spinal cord injury clients where they have been under-compensated

Pursuing a claim for compensation following a spinal cord injury can make a huge difference to an injured person’s quality of life. Bringing a claim will not turn back the clock but it can provide funds for care, accommodation, transport, medical treatment, therapies, holidays and compensate for lost earnings, thereby ensuring that the injured person has the best possible quality of life in the future.

As the SIA itself recommends, anyone with a spinal cord injury should ensure they instruct a law firm which has particular expertise in and experience of acting for clients with spinal cord injury. The specialist spinal cord injury solicitor will understand the issues facing their clients, will know the best experts to instruct and ensure that the very best barristers are involved in the case. The law firm should ensure that it fully appreciates every aspect of their client’s life: for example, at Stewarts Law we employ Independent Living Advisors, who are themselves wheelchair users, to assist clients and their families with the practical difficulties they may face.

Unfortunately, we are often approached by people with spinal cord injury who feel let down by the solicitors who conducted their case. If their claim is still ongoing, it is possible for us to take over conduct of their case and get it back on track. However, this is not possible for people whose claims have already settled.

In those circumstances, it is important to consider whether or not the claim was under-settled. If a claim has been under-settled, it may well mean that there will be insufficient funds to ensure that the injured person has the necessary funds to pay for care, accommodation, transport etc for the rest of their lives: the funds may well run out far too early.

We have seen a growing number of cases where the client is dissatisfied with the solicitors who have handled their cases. This may be because the solicitor who ran the personal injury case either lost the case, under-settled the case or advised the client he had no case (when he did have one).

If it appears that a claim has been under-settled, it is possible for the injured person to bring a claim against their previous solicitors. This is called bringing a professional negligence claim. In order to succeed in such a claim, the injured person needs to be able to prove that, on the balance of probabilities, the solicitors who conducted their personal injury claim were negligent and that, had they not been negligent, the injured person would have received more by way of compensation. All solicitors have professional indemnity insurance: if a successful claim is established, the solicitors’ insurer will have to pay out.

Where a client wishes to pursue a professional negligence claim against their former solicitors, cost-effective settlements can be achieved by effective use of the Professional Negligence Pre Action Protocol. Additionally, we also have considerable expertise in the use of alternative dispute resolution, such as mediation, often used as a tool for our clients’ advantage in such cases. If a settlement cannot be achieved by negotiation, we can pursue a claim against the solicitor on a no-win, no-fee basis so that the injured person does not have to put any of their compensation at risk.

It is important to ensure that trusted advisors provide the correct legal guidance. If they fail to provide the correct advice, the injured person should not be the one to lose out. That is the reason professional indemnity insurance exists – to protect those who rely on the advice of an expert.

Read more about Daniel Herman, Partner at Stewarts Law who heads up the Personal Injury department in Leeds here.

We are proud of our work with SIA, more details of which appear here

Thursday, 29 January 2015

Stewarts Law: specialists in international accident claims involving spinal cord injuries

Our team specialises in international accidents and can advise on the best route for bringing a claim, as they did in the following cases of Mr Wall and two clients attacked on a safari.

Our client sustained spinal cord and multiple orthopaedic injuries in a motorbike accident in France but there was a thorny issue relating to what applicable law should be followed.

Mr Wall wanted to rely on expert evidence from a wide range of expert witnesses, as is common-place in an English case, where catastrophic injuries have been sustained. However, under European law, there was an unresolved issue as to whether the English court should strive to reach the same result as a French court would.

The defendant French insurer argued that Mr Wall should be restricted to the expert evidence which would usually be placed before a French Court (usually just a single agreed, or court appointed, expert who then incorporates into their report any necessary expertise from other experts) so that the English court would be informed by French practice in the assessment of damages.

The Court of Appeal gave a landmark judgment in what is thought to be the first decision in Europe on Article 15 and Recital 33 of Rome II. This established that claimants can use a full range of expert evidence to demonstrate the life-long consequences of their injuries in English courts. This means that they are likely to recover fuller compensation than if the claim had been brought in the country in which the accident occurred.

The decision confirmed that English victims of motor accidents in Europe not only have the right to bring their claim in their home country, but that those claims will be subject to the English rules of evidence and procedure. English rules permit seriously injured claimants to advance much more detailed evidence than is allowed in most other European jurisdictions, affording them the opportunity to establish the full extent of their life-time losses and potentially recover fuller compensation than if the claim had been brought in the country in which the accident occurred.

We similarly overcame the difficulty in establishing jurisdiction in English courts when we acted for Canadian claimants attacked by an elephant during a walking safari in Zambia. They had initially tried to resolve their claim directly with the Zambian Safari Lodge in South Africa but became frustrated by the slow progress and instructed us.

The companies who ran and owned the safari lodge are based in Zambia and BVI. We successfully identified a route to English jurisdiction through the English residency of the chief guide of the lodge. The companies who owned the safari lodge challenged the jurisdiction of the English courts but agreed to pay compensation to our clients at a settlement meeting in October 2014.

The clients wished to avoid the inconvenience of issuing the claim in Zambia or South Africa and had the claim been issued in these jurisdictions, they would likely have recovered a fraction of the final settlement. We were able to resolve the complex international dimension of the dispute within a year.  

More information about Julian Chamberlayne, Partner in our Travel Department at Stewarts Law who specialises in overseas personal injury litigation can be found here. 

Read more about our work with SIA here.

Tuesday, 27 January 2015

Stewarts Law: Matt King and his work with the SIA

Our trainee solicitor, Matt King, joined Stewarts Law in 2010 following a number of years completing work placements with us. In his first year of training, Matt worked in our Personal Injury Department assisting with work for a number of our clients who had suffered a spinal cord injury. Matt was able to draw on his personal experiences since his accident in 2004 which gave him a unique insight and perspective into the challenges faced by our clients and a true ability to empathise with their situation.

Since that time, Matt has gone on to train in the Clinical Negligence Department during which time he again worked on a number of cases in which our clients had suffered a spinal cord injury. During this time, Matt has been in the unique position to employ his legal skills, whilst at the same time doing so with the knowledge of somebody having experienced what many of our clients are going through.

Matt broke his neck at the age of just 17 whilst playing in his first match for the London Broncos Under-18 Rugby League Academy side. A tackle one minute into the match left Matt paralysed from the neck down and dependant on a ventilator to breathe at all times.
Following his accident, Matt spent nine months recovering in the National Spinal Injuries Centre, Stoke Mandeville. Much like many of our clients, he had to learn to come to terms with his disability and strived to rebuild the pieces of his life.
Following Matt's discharged home in December 2004, he returned to school to complete his A-levels, achieving straight ‘A’ grades, and began studying Law at the University of Hertfordshire. Matt graduated with a First Class Honours Degree in Law before joining us to complete his legal training in 2010.
During his nine-month stay in hospital, Matt became more than aware of the crucial importance which being able to speak with others who had suffered a similar injury could bring. For Matt, these experiences whilst he was in hospital brought him hope. Because of this, since his discharge from hospital, Matt has always strived to help others who have suffered similar injuries, advocating on behalf of those with spinal injuries and volunteering as a peer advisor with the Spinal Injuries Association, strengthening our partnership with the work they do in his own right. This role has allowed him to visit patients in spinal units, offering support, advice and encouragement to help them on the road to recovery.
He has not lost his love for rugby and sport in general. Since his accident, Matt has gone on to qualify as a rugby coach, and in 2006 became the first person in the world to complete a half marathon when he took part in and finished the BUPA Great North Run. The following year he went on to complete the 2007 ING New York Marathon, raising thousands of pounds for charity in the process.
In recognition of his charitable work, Matt was awarded an OBE in the 2012 Queen’s Birthday Honour List for services to Charity and those with Disabilities: an honour which he received from the Prince of Wales at Buckingham Palace in January 2013.

Matt will complete his legal training in January next year, and he plans to qualify into the Personal Injury Department to continue assisting others having suffered a catastrophic injury, be it to the spinal-cord, or otherwise. He hopes that his experiences since his accident in 2004 will give him a unique insight which will enhance both his ability, and that of Stewarts Law, to provide the best quality of legal service possible.

Read more about Matt’s work here    

We are proud of our work with SIA, more details of which appear here

Monday, 26 January 2015

Stewarts Law: calculating compensation for clients with spinal cord injuries

In our last week as a guest post writer for SIA, this article outlines the considerations the court take into account when assessing the level of damages. We share the story of how damages were assessed in the case of three backpackers in Australia, securing financial peace of mind for them in the context of an international claim.

At the outset of working together with a client, we provide them with a broad assessment of the likely damages they will receive. Each case is decided according to the severity of the injury and the needs of the particular individual. Every case will be different.

The English courts attempt to put the claimant, in so far as is possible, in the position that they would have been, had the accident not occurred.

Damages can be awarded both for the injury itself and for current and future costs and financial losses. These may include loss of earnings, the cost of care, suitable and adapted housing, equipment and medical expenses.

As specialists in spinal cord injury, we not only represent our clients in court if needs be, but we also strive to help them with every legal issue that arises. Our exclusive focus on serious injury claims has enabled us to deliver exceptional client service. Our lawyers appreciate that the demands of those with spinal cord injury differ from those with lesser injuries.

We handle one-fifth of the number of cases handled by most other personal injury lawyers, thereby ensuring a high level of service. Over the last three years, the firm’s Personal Injury department has concluded more than 200 cases, recovering an average of over £2 million for each client.

We successfully concluded a claim on behalf of three young Britons who were seriously injured in a tragic accident whilst travelling in Australia. They joined a group of other young travellers on a self-drive off-road trip around Fraser Island in Queensland. The Toyota Land Cruiser Troop Carrier they were travelling in was being driven along a beach by another young British man when he swerved to avoid an oncoming wave and rolled the vehicle.

Two passengers died in the accident and others sustained a variety of serious injuries, including spinal cord injuries. S suffered incomplete paraplegia, R suffered orthopaedic and internal injuries and C suffered a spinal fracture and the bereavement of a close friend who was killed in the accident.

All three instructed Julian Chamberlayne of Stewarts Law to bring claims for personal injuries against the driver of the vehicle and the Australian insurer of the jeep. This was prompted by Julian's unique specialisation in representing those seriously injured in overseas accidents, including representing the spinal injured claimant in the landmark House of Lords decision in Harding v Wealands.

Julian swiftly obtained an admission of liability from the Australian insurer, although technical evidence reconstructing the accident was required to analyse issues relating to the effectiveness of the lap-belts fitted to the jeep in a high speed roll-over accident like this one.

The case had two substantial hurdles to overcome to achieve what we felt was an appropriate level of damages for our clients. By using our in-depth knowledge of international law, we advised S, R and C to bring their claims in the English courts, even though the accident occurred overseas.

The first hurdle to overcome was establishing jurisdiction in English court and English-applicable law, when the accident had occurred in Australia and the vehicle, activity organisers and insurers were Australian. The two hooks we used to establish English jurisdiction included the fact that S, R and C were residents of England and the driver of the jeep was from Liverpool.

This crucial decision enabled them to recover at least 30% more compensation than they would have done in Australia. In the early stages of the High Court proceedings, the Stewarts Law team then successfully negotiated settlements with the Australian insurers and their lawyers based on English legal principles.

The second complex issue was establishing the loss of earnings. Both S and R had first class economics degrees, but had not yet started full time work at the time of the accident. We commissioned reports from investment banking experts to calculate the long-term impact of the serious injuries they sustained on their likely careers in the financial services sector.

S commented: 'The entire team at Stewart's Law left no stone unturned when it came to ensuring I received the correct level of damages after suffering such horrific personal injuries. In fact, their efforts completely exceeded my expectations. I can now happily move forward in my life with the knowledge and confidence that all my current and future needs will be more than adequately met.'

We ensured that future loss of earnings was taken into consideration alongside the more apparent losses at the time. This forensic attention to detail, both in terms of reconstructing factual events for courts to make fully informed decisions and in assessing the needs of our clients both now and in the future, helps us to achieve robust outcomes.

For more in-depth information on the legal challenges faced by English claimants injured in Australia and beyond, please click here for the article.

More information about Julian Chamberlayne, Partner in our Travel Department at Stewarts Law who specialises in overseas personal injury litigation and led S, R and C’s cases can be found here.

Read more about our work with SIA here.

Friday, 23 January 2015

Stewarts Law: securing interim payments for clients with spinal cord injuries

In our fourth blog post, we discussed the importance of bringing viable claims in order to meet the short and long term needs of those affected by serious injury.

In this post, we address how interim payments are often crucial for victims of accidents to help them adjust to life with a spinal cord injury and return to Issy’s story.

We have discussed how we represented the young and ambitious Issy Sale who has complete tetraplegia, following a car crash when she was nine in July 2005. She sustained severe damage to her spinal cord, resulting in complete tetraplegia. Issy Sale will be dependent on a ventilator for the rest of her life and uses a chin-controlled electric wheelchair.

We recognise that early access to interim payments can make a real difference and are aggressive in pursuing interim payments for our clients so that they can, at an early stage, make arrangements in relation to treatment, rehabilitation, care, equipment, transport and accommodation.

In Issy’s case, interim payments were critical to enable Issy, her father Dr Andrew Sale, her mother and older brother Ted, to buy a more appropriate home in Ludham.

Paul Paxton of Stewarts Law represented Issy and her family. Her mother’s insurers quickly admitted liability and made substantial interim payments.

Despite her injuries, Issy - whose IQ puts her in the top 4% of her age group – has just completed her AS-levels and is aiming for a Russell Group University and a career in languages. Mrs Justice Nicola Davies, who approved the final compensation award at London's High Court, said one could not but feel "humbled and impressed" at Issy's extreme bravery and fortitude.

The judge, who later came down to sit by her side for a private chat, added: "It's utterly remarkable what you have achieved. GCSEs and A-levels are not easy for anyone and to have done what you have done is fantastic."

Issy’s successful claim reinforces the importance of assessing immediate and long-term needs to make an adequate and appropriate award of interim payments combined with damages.

Read more about our work with SIA here.

More information on Paul Paxton, Partner at Stewarts Law who specialises in complex personal injury claims, and led Issy’s case, can be found here.

Thursday, 22 January 2015

Stewarts Law: securing funding for exoskeletons on behalf of those with spinal cord injury

Dale Messenger in Cape Town
Stewarts Law specialise in catastrophic personal injury work and as part of our series taking you through the process of claiming compensation, we wanted to share with you recent success in securing damages to fund exoskeletons for suitable clients.

We recently acted on behalf of a serviceman in the case of Dale Messenger v Ministry of Defence. Our client suffered serious spinal injuries in October 2009 during a live ammunition training exercise in the Falkland Islands. During the exercise, Dale was accidentally shot by another soldier with the bullet passing through his right hip and out of his left hip. As a result of the shooting, Dale was left paralysed and is wheelchair dependent.

Stewarts Law pursued a claim against the Ministry of Defence and liability was admitted in full, with the level of compensation agreed in September 2014. Dale Messenger recovered 100% damages including damages in excess of £550,000 to cover the cost of an Ekso exoskeleton. The costs for the exoskeleton covered the walking frame with replacements and its associated costs over the course of Dale’s lifetime. 

According to Ekso Bionics who manufactures the Ekso suits, this was the first known recovery of damages in England and Wales for this type of equipment.

When thinking of bionic exoskeleton suits, futuristic robotic uses often primarily spring to mind. The term ‘exoskeleton’ has its source in nature, referring to the outer skeleton that some animals have to support and protect them. 

Exoskeletons were primarily developed for military uses. They are used to provide protection, and give servicemen the ability to bear huge weights, in the field and in rescue operations to recover victims without significantly moving them.

BBC News has reported on the ‘rise of the exoskeletons’ which explores how the suits are becoming ever more sophisticated with technological advances. 

Crucially, exoskeletons are becoming commonplace in patient rehabilitation. This is one of the most exciting areas of development in the field of spinal injury and one that Stewarts Law takes a keen interest in. The devices are aimed at getting the spinally injured back on their feet and walking again. 

The Ekso exoskeleton allows Dale to pursue therapeutic walking. We have seen first-hand that this makes a huge difference to our clients. Whilst offering the various positive physical benefits that one might expect, walking in the Ekso resulted in significant pain relief for Dale.

Dale, who is also an Ambassador for Ekso Bionics, travels the world demonstrating the Ekso.

According to Ben Rogers, Partner at Stewarts Law who represented Dale, “This settlement reflects both the ability in principle to recover damages for the Ekso and of course the need to instruct a specialist lawyer to assist with such a claim.”

Dale Messenger demonstrates the Ekso for Ekso Bionics in Cape Town
The Ekso has made a big difference to Dale who says “During my case, many subjects were discussed and items of equipment reviewed. One such item was the Ekso and it proved to be more valuable than I could imagine. The benefit I get from the Ekso ranges from pain relief, improvements to my bladder/bowel function and more recently, an increase in my motor function and sensation. Stewarts Law worked continuously to ensure that I was kept up to date for the duration of my case and the acquisition of funds for the Ekso in my settlement just shows how dedicated they are. I cannot thank them enough.”

This is a field which is rapidly progressing and we expect to see more claims that secure people access to exoskeletons.

Read more about our work with SIA here
Ben Rogers, a Partner at Stewarts Law, represented Dale Messenger and advises on all aspects of catastrophic injury, with particular expertise in spinal cord, brain, complex orthopaedic and amputee injuries.