the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Schedules, Counter Schedules and the Gadget Generation

    No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a year or just under £300 per year per household on technology for their children.   This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.   http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx   We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.   Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.   The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.   It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could not even match their “techie tots” when it comes to knowing their way around the latest gadgets.   Perhaps the Counters Schedulers have a point?

Handle with Care!

  “Handle with Care” will be best known to fans of the Traveling Wilburys as the first track on the group’s 1988 album, “Traveling Wilburys Vol.1”. It is also the key message of the fifth annual “State of Care” report by the Care Quality Commission (CQC) issued on 17 October 2014.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364440/CQC_StateOfSocial_2014.pdf   The report which looks at 40,000 services and provides a useful, if rather worrying, insight into the state of care in England concludes that the variation in the overall quality of care is unacceptably wide.   The report covers adult social care, hospitals, mental health care and community health services and primary medical services and integrated care.   The CQC found some instances of “outstanding” care and it also rated many other services as “good”. However, it also found many services that are “inadequate” or “require improvement”.   As a result of the latter, people are being failed by the “numerous” hospitals, care homes and GP practices which are unable to meet the standards achieved by other services.   The CQC found many instances where the particular problem has existed for years. However, the CQC makes clear this is not an excuse. In fact it is “quite the opposite”.   More worryingly, the CQC concludes that too many service providers have still not got to grips with the “basics of safety”.   The CQC is now “calling time on this unacceptable lottery”.   The challenge to every health and care provider is to deliver the “high standards of care that each person has a right to expect”.   Or, as Roy Orbison and Bob Dylan sang in the bridge to the 1988 track,   “Won't you show me that you really care?”

After pasties and caravans … CFAs and DBAs?

Is it just me or should we all be concerned about the way in which the legislation to implement Lord Justice Jackson’s recommendations is being introduced?   Why have there been so few announcements about what are, after all, radical and far reaching public policy changes? If we as legal professionals are unsure about the proposed changes, how can we properly advise the public after 1 April 2013?   Will legal professionals soon be joining bakers and caravanning enthusiasts in pointing out to the government the potential far reaching consequences of over hasty legislation?   In the foreword to his final report on costs in civil litigation dated 21 December 2009 Lord Justice Jackson wrote:   “ … I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice ...”   He went on to make a total of 109 separate recommendations some but not all of which have found their way into proposed new legislation. In particular the Conditional Fee Agreements Order 2013 (the CFA Order) and the Damages-based Agreements Regulations 2013 (the DBA Regulations) have now been laid before Parliament and were subject to a Motion to Approve debate in the House of Lords on 26 February 2013.   Both have been described by the General Council for the Bar (GCB) as “not fit for purpose”. The GCB also suggested that the proposed order and regulations “will deny access to justice, burden the courts’ time with unnecessary satellite litigation and limit the commercial use of DBAs”.    There are certainly grounds for concern. As we all know, the success fee under a CFA entered into after 1 April 2013 for proceedings at first instance will be capped at 25%. Article 5(2) of the proposed CFA Order provides that this will be 25% of “(a) general damages for pain, suffering, and loss of amenity; and (b) damages for pecuniary loss, other than future pecuniary loss” (my emphasis). However, in a lecture given on 29 February 2012, Lord Justice Jackson amended his view in response to submissions from a number of parties and proposed that the cap should be 25% of all damages. There must be a risk that in larger and more complicated cases which are difficult to cost budget and involve significant initial disbursements, limiting the cap to 25% of past losses will not promote “access to justice” as Lord Justice Jackson hoped but may in fact prove to be a disincentive to  taking on such cases in the first place.   Then there is VAT. As drafted, the proposed CFA Order provides that the “damages” to which the 25% cap applies are “net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions”. There is no exclusion for VAT. But if VAT is included in such damages there is not only scope for uncertainty (what happens, for example, if the VAT rate changes after the CFA has been entered into but before a bill of costs is rendered?) but in the larger and more complicated cases this may be a further reason why those contemplating taking on such cases may decline to do so on the grounds that the unpredictability of the risk will not be properly compensated by the level of the CFA.   The same objections apply to the proposed DBA Regulations. As presently drafted, the cap for DBAs is inclusive of VAT but exclusive of damages for future pecuniary loss. In addition, the DBA Regulations do not allow for “hybrid” agreements i.e. agreements under which some costs are recoverable if a “win” does not occur rather than no costs at all. This is again contrary to what Lord Justice Jackson recommended and may prove a disincentive to the use of DBAs particularly in commercial cases.   Access to justice may not be as newsworthy as Cornish pasties and static caravans but in resource-intensive cases, the government’s aim of protecting the damages recoverable by claimants may actually result in some claimants being unable to obtain legal representation and thus recovering no damages at all.       Image – cornishpasties.com

Personal Health Budgets and Heads of Loss - Assistance Animals?

The Times today carried an article entitled “NHS will cough up for music lessons and manicures.” It was referring to the three year trial of personal health budgets, whereby people in the NHS Continuing Care programme are able to determine themselves, how best to spend the money allocated to them.    Their budgets are of course typically spent on many items one routinely sees in schedules of loss, namely: carers, mobility aids, domestic assistance and medical expenses. However, the article makes reference to less usual expenses, such as manicures, hairdressing, musical instruments, theatre trips, craft materials and cooking utensils. The article mentions one woman with depression, using some of her budget to learn dress-making; another with multiple sclerosis, having used theirs to purchase a cat and reflexology sessions; and another with chronic lung disease, using theirs for singing lessons.   It is clear that such disperate, diverse and unusual uses for the personal health budgets were greatly therapeutic to the individual patients. However they are rarely seen claimed for in domestic personal injury cases.   Particularly, the use of “assistance animals” is something which is not always appreciated in the UK (beyond guide and hearing dogs), as it is in other parts of the world. Certainly in the USA they are medically recommended by physicians to help temper the symptoms of a range of physical and psychological illnesses. The author has had some experience of observing a case in the US Federal Court in May of this year, involving a woman with depression allegedly caused following a personal injury, who had a rather fine Airedale terrier who was trained to demand attention when it sensed his mistress was feeling low, thus distracting her from her condition. She described the dog as being essential to her health and wellbeing and hinted that he had prevented several suicide attempts. Should personal health budgets become the norm, the range of expenditures is likely to broaden away from the more conventional expenses associated with long term care. This will undoubtedly affect the range of heads of loss litigators are likely to come to have to consider. Should “assistance animals” become to be more recognised as an effective non-medical means of mitigating the symptoms of injuries (probably more commonly psychological), lawyers can expect to increasingly come across claims for the same. Perhaps in time, it will be necessary to have Ogden Tables for the life expectancy of different types or breeds of animals, or suggested actuarial tables relating to the cost of their keep.       NB, these cats are NOT assistance / service animals  

Court approves settlement of CP claim including lump sum of £1.6 million

The Court today approved a settlement of a claim by a 16 year-old boy suffering from cerebral palsy resulting from a negligent delay in performing a Caesarian Section. The Claimant had previously established liability at a trial of a preliminary issue. The Claimant was to recover : (i) a lump sum of £1.8m; (ii) an annual periodical payment linked to RPI for life starting at £45000; and (iii) an annual periodical payment linked to ASHE 6115 80th centile for life commencing at £140000, increasing to £185000 on December 15, 2015. RS (By his father and litigation friend TU) v Newham University Hospital NHS Trust, Swift J., QBD 15.10.12       

Beware the NHS ‘killing season’

If you had the misfortune to be inside a hospital today, you may not have been imagining it if you thought the doctors are getting younger…   According to the Telegraph, around 7,000 graduate doctors today began practice in hospitals up and down the country.     Dr Anthea Martin, senior medical advisor at the Medical and Dental Defence Union of Scotland, says “many [junior doctors] are being thrown in at the deep end and the nature of medicine means that it is inevitable doctors have to learn on the job.”   The changeover has been labelled as 'black Wednesday' or the 'killing season' because of the rise in death rates. In 2009 a study by Imperial College London (involving 300,000 patients at 170 hospitals) found that patients admitted as an emergency on ‘black Wednesday’ are 6% more likely to die than on the previous Wednesday.   This raises questions over the standard of care expected of more junior doctors.   The general rule, as set out by the Court of Appeal in Jones v Manchester Corp [1952] 2 Q.B. 852, is that the patient is entitled to the same level of care and skill as would be expected of a fully qualified and well experienced doctor. “Errors due to inexperience or lack of supervision are no defence as against the injured person”.     What is often overlooked is that subsequently in Wilsher v Essex AHA [1987] Q.B. 730, a majority of judges accepted (albeit obiter) the standard of care owed by a doctor may depend on his subjective knowledge of the risks associated with the treatment. According to Sir Nicholas Browne-Wilkinson V.C “one of the chief hazards of inexperience is that one does not always know the risks which exist”. A doctor “should only be held liable for acts or omissions which a careful doctor with his qualifications and experience would not have done or omitted” Mustill L.J. was more blunt: “The structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much”.   It remains to be seen whether, and if so how, these cases can be reconciled. ‘Black Wednesday’ may indirectly, provide the answer.

From vicarious liability to non-delegable duties...

Some cases are destined for not just one visit to the appellate courts but several. You may remember the case of Woodland v Beryl Stopford and others [2011] EWCA Civ 266. Simon Trigger wrote about it on this blog exactly 1 year ago to the day under the heading ‘We can all now resile from pre action admissions’. It is now back on the issue of non-delegable duties in the context of schools and pupils (Woodland v Essex County Council [2012] EWCA Civ 239).   Just to remind you of the facts, a school pupil, Annie Woodland, suffered a hypoxic brain injury on 5th July 2000 as a consequence of getting into difficulties in a swimming lesson. The swimming pool facilities were not those of the education authority, Essex County Council (‘Essex’), but of Basildon Council. Neither the life guard nor the swimming teacher were employees of the school but of Ms Stopford who traded as Direct Swimming Services. The question was whether Essex owed Annie Woodland a non-delegable duty of care. What was contended was that the duty owed by Essex was personal: that it owed a duty to ensure that reasonable care was taken and that it was not sufficient just to take reasonable care in employing competent contractors.   Such a duty only currently exists in well-defined circumstances - employers are required to take reasonable care for the safety of their workmen, dangerous operations on the highway, particularly hazardous operations, the escape of fire and the rule in Rylands v Fletcher. What was being advocated was an extension of the principle to the school-pupil relationship. The case will also be of particular interest to medical negligence practitioners given the discussion of the hospital-patient relationship.   Laws L.J. was prepared to allow the appeal. He considered that there was a justification for imposing a personal duty in both the school and hospital context based on the acceptance of responsibility for a group of persons who are particularly vulnerable or dependent. However he recognised that there needed to be some limit to the scope of the duty and postulated that ‘a school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who is (a) generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending the sick’.   The other judges did not think that anything had been placed before them which justified such an extension of the law and accordingly the appeal was dismissed. Tomlinson L.J.  thought that Laws L.J.’s formulation would result in a finding of liability where a child on a school trip was bitten by an animal due to the negligence of a zoo-keeper unless the trip could be considered not to be a part of the school’s mainstream function of education (which he doubted). He observed that the imposition of such a duty would be likely have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils. In dismissing the appeal Tomlinson L.J. observed that only the Supreme Court could impose such a duty as was contended for. I suspect this will not be the last time this case is heard of in the appellate courts.

Mind the Gap!

At least you know where you are with the NHSLA. The same is true of the various medical defence organisations. Can the same be said for the new regime proposed under the Health and Social Care Bill (HSCB)? If there are gaps in the indemnity arrangements for NHS care, what does this mean for claimants and defendants? On Friday (24 February 2012) the Department of Health (DOH) issued a short guide for providers of NHS-funded services outlining the proposals in the HSCB. Guide for Providers According to the guide the HSCB “establishes a comprehensive, proportionate and robust legal framework for sector regulation to protect patients’ interests”. NHS services will continue to be delivered by a “mixed economy of public, independent and voluntary sector providers”. A joint licensing regime, applicable to “all providers of NHS services” will come into effect for foundation trusts in January 2013 and other providers from April 2013. The guide also refers to the basis of pricing and payments for “independent sector providers, charities and social enterprises”. What is not clear from the guide is how it is proposed to ensure that these new “providers” have and in keep in place adequate insurance for the care which they provide to NHS patients. If, as the current draft of the HSCB would suggest, there are gaps in the indemnity arrangements for NHS care, claimants may face difficulties in obtaining compensation for substandard care and defendants will be operating with uncertainty over who is liable for what under the proposed new regime. The recent problems with PIP breast implants illustrate what happens when responsibilities become blurred. The danger is that with the HSCB encouraging numerous new “providers” of health care services across both the private and voluntary sectors, there will be confusion when things go wrong. Even if a potential defendant can be identified the HSCB does not at present require new “providers” to meet pre-set indemnity levels. What is to happen if a “provider” is under-insured or goes out of business as some clinics have threatened to do in relation to PIP breast implants? Is there then a claim in negligence against “the commissioning consortia” which may be an individual general practitioner arising out of the original referral? The HSCB still has some way to go to provide the certainty that both claimant and defendants will require if the proposed new regime is to gain the confidence of both. For lawyers faced with increasingly shrill demands to reduce both time and costs, any additional delay in establishing who is responsible and whether adequate indemnity or insurance arrangements are in place will be equally unwelcome. The legal advice from the outset on both sides must be to “mind the gap”.

Cutting legal aid in clinical negligence cases will cost the taxpayer

The Legal Aid, Sentencing and Punishment of Offenders Bill returned today to the House of Lords for its second day in committee. On the previous occasion, peers, including our very own Lord Faulks, made clear their view that the Bill is unacceptable in its current form. One hopes that today their lordships considered those sections of the Bill aimed at removing legal aid for clinical negligence cases.    The Government is seeking to save £10.5 million by this proposal. However financial analysis carried out by Kings College London estimates that the knock-on costs to the Department of Health via the NHSLA would outweigh these predicted costs savings (see http://www.kcl.ac.uk/content/1/c6/08/81/08/UnintendedConsequencesFinalReport.pdf). The analysis identifies four sources of knock-on costs, namely: The ATE premium for expert fees and reports; The 10% increase in damages to fund ‘success fees’ under the Jackson reforms; Costs generated by claimants who “give up” seeking justice, for example increased welfare payments, medical treatment and lost output; and Costs defending spurious actions no longer weeded out by the legal aid screening process, which would not be recoverable under the proposed system of Qualified One-way Cost Shifting.   Based on the report’s estimates, the Bill would generate a net loss of approximately £18 million per annum. Though an estimate, this is currently the only figure available. In evidence to the Justice Select Committee, the Ministry of Justice admitted that it had not analysed the impact of the proposals on other Departments. We wait to hear if the economic case against cutting legal aid in this area has been made in the committee session today.