3 December 2009
Acting for claimants in personal injury (PI) actions can be one of the most satisfying of specialties for a lawyer, as the case of each individual claimant has unique features both in relation to the two core issues of liability and quantum.
What’s it all about?
It is the primary task of the claimant’s lawyer to fight for the rights of the individual, ultimately seeking to place the claimant in as good a position post-accident as one can to try to recover the life they held prior to the accident.
The work may not have the commercial glamour of the life of the ‘big boys’ of the City, but it makes a real difference to the quality of life of individuals who, without representation, may be left with no means of redress. The work ranges from straightforward small road traffic cases to complex multi-claimant, multi-defendant and multimillion-pound class actions.
As stated, the core issues in a PI case relate to establishing liability and valuing the quantum of the case. Liability, particularly in employers’ liability and public liability cases, can be far from straightforward. In a recent House of Lords decision this year (Smith v Northamptonshire County Council) their Lordships were divided three to two on the interpretation of the words “equipment provided for use or use… at work” within Regulation 3 (2) of the Provision and Use of Work Equipment Regulations 1998. The claimant, Jean Smith, worked for the council as a driver and carer. One of the patients she picked up from her home was wheelchair-bound. The NHS provided a wooden ramp to enable the patient to enter/exit her property. While pushing the patient down the ramp, the edge of the ramp broke, causing the claimant to fall and suffer a fractured wrist. The issue was whether the ramp was ‘work equipment’ within the terms of the regulations, considering that the ramp was provided by a third party but used on a regular basis by Smith in the course of her employment. Understanding the regulations and how they are interpreted within the context of the European approach to health and safety and the apparently more restrictive view of the senior judiciary within the UK is challenging.
Understanding an injured person’s plight as a consequence of the restrictions imposed on them by the effects of the injury/illness is essential. Clients range from individuals to members of trade unions and other institutions.
Of all the cases in which we act the saddest are those for sufferers of asbestos-related cancers and brain-damaged infants from clinical negligence. You establish strong and essential relationships with the sufferers and their families over the course of the proceedings and a successful conclusion is immensely satisfying, albeit you retain the knowledge that you can never achieve a level of damages that in any way compensates for the injuries suffered.
The working culture
The days of relatively modest chargeable hours, long lunches and Friday on the golf course stopped, for most, in the 1980s. Over the past 20 years PI litigation has been subject to a number of attacks, particularly in relation to costs issues and ‘proportionality’. Many PI cases, because of the relatively modest level of damages within the UK, require a perceived disproportionate level of time and attention to reach a conclusion. This creates an impression that the costs are unreasonable for the damages recovered. However, from the claimant’s perspective we have to prove the case, and in the event that the defendant does not comply with the protocols, denies liability or raises issues of contributory negligence, we have to construct the case accordingly.
The overall effect, however, is that chargeable hours for claimant PI lawyers have increased. We work in an office environment and, while much more of our work is conducted via IT systems and email, paper files remain a feature. Team working, particularly on the higher-value cases and maximum severity claims, is more common in the larger firms and there is a growing specialisation between fee-earners working on road traffic or employers’ liability, clinical negligence or disease litigation.
As indicated, PI remains an ever-changing area of the law. Lord Justice Jackson is reviewing the civil process and cost issues. A new, simpler road traffic accident system is being introduced for lower-value claims. The issue of damages and the assessment of damages is being considered as part of the review.
Each month, however, the law changes, with important decisions coming out of the Court of Appeal and House of Lords. Thankfully client care and the importance of looking after the injured individual in protecting their rights and fighting their corner is, if anything, becoming more accepted. Many of us reject any proposal to extract the unique features of an individual and their case from the design of any system of working within PI litigation. Therefore, while the future is one that will introduce more changes into this field of law, the PI claimant lawyer will retain the principle that looking after the interests of the injured individual is paramount.
Simon Allen is a partner at Russell Jones & Walker