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20 Steps Stuart McKechnie Barrister to maximising a catastrophic injury claim Stuart McKechnie is a personal injury and clinical negligence specialist who is listed as a leading junior in the Chambers & Partners and Legal 500 legal directories. He was awarded the title of Personal Injury Barrister of the year at the 2011 Personal Injury Awards and has been nominated for Personal Injury / Clinical Negligence Junior of the Year at the 2012 Chambers & Partners Bar Awards. Stuart is also on the editorial board of the Judicial College Guidelines for the Assessment of General Damages Writing an article about how to maximise a catastrophic injury claim within 2100 words is an extremely hard ask. In this article I have focused on 20 key points that can make a difference to the landscape of such a claim. 1. 2. As soon as reasonably practicable, a provisional witness statement should be taken from the claimant. This witness evidence should highlight the claimant’s personal, professional and family background prior to the accident and identify how the claimant’s life was projected to move forwards (this can be placed under a heading ‘but for the accident’). The statement should then move on to deal with the injuries that were sustained in the accident and the impact that these injuries have had upon the claimant’s life as a whole (under the heading ‘as a result of the accident’). In addition, provisional witness statements from family members are particularly important in cases where there is likely to be a substantial gratuitous care claim or a claim for alternative accommodation. Details of the care regime should be outlined within the witness evidence along with a best estimate of the hours provided. The purpose here is obtain an important aide to the quantifications made by a care expert further down the line. The claimant or those caring for them should be asked to keep an ongoing record of all expenditure incurred, including a list of all accident related mileage, taxi fares, prescription expenses, over the counter medications etc. A log book or diary suits this purpose perfectly. Receipts for such expenditure must be kept. 3. Do not ignore the smaller items of loss and expense. It is these items that often give the real picture of how the injuries have impacted upon the claimant’s life – for example incontinence pads, can openers and sock pullers all tell a significant story. 4. Address the issue of liability at a very early stage. It will be crucial to how a catastrophic injury claim will be run. If there is a dispute on liability, obtain your evidence quickly and issue proceedings with a view to a split trial. 5. Look at early rehabilitation and case management. An initial needs assessment [INA] should be a matter of priority. In a case where liability is admitted in full, seek private funding by way of early interim payments and try to keep control over the rehabilitation process rather than rely on the rehabilitation code (which can often delay matters and revolve around agencies specifically connected to / selected by the defendant insurer). If the rehabilitation code is relied upon, be selective over who is going to be appointed to carry out the INA and case management / rehabilitation. 6. 8 Choose the medical experts very carefully. In catastrophic injury litigation, it is preferable to have specialist experts based at dedicated centres of excellence. For example, Stoke Mandeville or Salisbury for spinal injuries, Roehampton for amputees and Addenbrookes for Neuro injuries. To put this in perspective, over the past 12 months I have been dealing with a serious spinal injury claim where my instructing solicitors had previously instructed a general orthopaedic surgeon and general neurosurgeon. The addition of a specialist spinal surgeon from a dedicated centre of excellence has conservatively added 33-50% onto the value of that claim. 7. If the medico-legal evidence is going to take time to collate (often the case), consider appointing a lead medico-legal expert to provide an early overview of the injuries, care needs, treatment required and further experts to be instructed. Use this evidence to justify an early interim payment. 8. Consider the issue of accommodation at an early stage. Obtain specialist architectural advice if appropriate. However, make sure that you have strong medico-legal support for such a claim before embarking on making any accommodation changes. Consider the case of Pankhurst v. White [2009] EWHC 117 (QB) as a salient lesson in this area. 9. Make sure your care expert maximises the claim for gratuitous care. It is common practice to use Spinal Point 8 of the National Joint Council pay rates for local authorities. Facts & Figures includes a table based upon the NJC rates that can be used to value gratuitous care. This table is based on a combination of rates paid to carers and home helps & companions. In catastrophic injuries, leading to gratuitous care that is akin to high quality nursing care, the claimant may be able argue for a higher pay rate that reflects the cost of specialist nursing care. Furthermore, in catastrophic cases the aggregate rates will usually be appropriate on the basis that care is often provided at unsociable hours / weekends and the basic flat rates do not reflect the cost of employing a private carer, cleaner or home help. If the gratuitous care relates to straightforward daytime hours, the basic rates are likely to be preferred. 10. Bear in mind that a claim for care is recoverable in relation to hospital visits made by family members / friends provided such visits can be said to aid the claimant’s recovery: see Owen v. Brown [2002] EWHC 1135 (QB). 11. Look carefully at life expectancy. Clinician experts should be the normal and primary route through which statistical evidence was put before the court, and only if the clinicians disagree on a statistical matter should the evidence of a statistician be sought: see Arden v. Malcolm [2007] EWHC 404. It is important to precisely ascertain what clinicians are saying about life expectancy. In particular are they saying that the claimant will live until a particular age or that the normal life expectancy has been reduced by a particular period? In the first case, the calculation of the multiplier may be approached on the basis of a payment for a fixed period equal to the life expectancy using table 28 of the Ogden Tables: see