3 December 2009
28 October 2002
31 January 2000
23 January 2012
Marian Joseph on English go-ahead for German assigned claim. Marian Joseph is a partner with Pritchard Englefield, which acted for Land Hessen.
29 September 1998
What’s it all about?
It is the primary task of a claimant’s lawyer to fight for the rights of the individual, ultimately seeking to place the claimant in as good a position as possible following an accident to try to recover the life they led prior to it. The work of a personal injury (PI) lawyer may not involve the commercial glamour of the life of the big boys of the City but it can make a genuine difference to the quality of life of individuals who, without representation, could be left without any means of redress. The work can range from straightforward cases involving relatively minor road traffic accidents right up to complicated multi-claimant class actions involving millions of pounds.
As stated, the core issues in a PI case relate to establishing liability and valuing the quantum of the case. The question of liability, particularly with regard to employers’ liability and public liability cases, can be far from straightforward. In a recent House of Lords decision (Smith v Northamptonshire County Council) their Lordships were divided three to two on the interpretation of the words ‘equipment provided for use or uses 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 regularly picked up from her home was a wheelchair user. The NHS had provided a wooden ramp to enable the patient to enter and exit her property. While pushing the patient down the ramp one day it broke, causing the claimant to fall and suffer a fractured wrist. The issue was whether the ramp could be defined as work equipment within the terms of the regulations considering that it was provided by a third party but used on a regular basis by Smith in the course of her employment.
Sometimes, understanding the regulations and how they are interpreted in the context of the European approach to health and safety and the apparently more restrictive view of the senior judiciary in this country can be challenging. Meanwhile, understanding an injured person’s plight as a consequence of restrictions imposed on them by the effects of an injury or illness is essential. Clients can 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 as a result of clinical negligence. You tend to establish strong relationships with 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 your clients have suffered.
The working culture
The days of relatively modest chargeable hours, long lunches and Fridays spent on the golf course came to an end for most PI laywers in the 1980s. In the past 20 years PI litigation has been subject to a number of attacks, particularly in relation to costs issues and proportionality. Because of the relatively modest level of damages in the UK many PI cases require what could be perceived to be a disproportionate amount of time and attention to reach a conclusion. This creates an impression that the costs are unreasonable for the damages recovered. But from the claimant’s perspective we have to prove the case, and in the event that the defendant does not comply with protocols, denies liability or raises issues of contributory negligence we have to construct the case accordingly. But the overall effect is that chargeable hours for claimant PI lawyers have increased.
We work predominantly in an office environment and while much more of our work is conducted with the help of IT systems and email these days, paper files remain a feature. Team working, particularly on higher value cases and maximum severity claims, is more common in larger firms and there is increasing specialisation between fee-earners working on road traffic or employers’ liability cases, clinical negligence and disease litigation.
PI is an ever-changing area of the law. Lord Justice Jackson has reviewed the civil process and cost issues. His Lordship clearly speaks on behalf of the senior judiciary in wanting to simplify - and thereby reduce the costs of - the civil process. The implementation of measure in his report will be a key issue in the PI world in the next 12 months. In April, a new, simplified road traffic accident system was introduced for lower value claims and this may prove to be a forerunner of much of what his Lordship is seeking to do.
It seems that every month the law in this area changes, with important decisions coming out of the Court of Appeal and House of Lords. Thankfully, client care and the importance of looking after injured individuals with regard to protecting their rights and fighting their corner is, if anything, becoming more accepted. Many of us would reject any proposal to extract the unique features of an individual and their case from the design of a system of working within PI litigation. Therefore, while the future is bound to hold yet more changes in this field of law PI claimant lawyers will remain faithful to the principle that looking after the interests of injured individuals should be paramount.