Major Success for Rogers and Norton Specialist Personal Injury Team

 Mark Hambling, Director in the Rogers & Norton Personal Injury Department has successfully concluded a substantial claim for damages for client following a serious accident at work.

The claim was complicated as our client was a self-employed individual who had been contracted to undertake work at the premises of a customer who he was subcontracting to. This was not therefore a normal employer liability claim but as a result of the Personal Injury team’s experience and detailed knowledge of both the law in negligence and the extent to which this is aided and informed by statutory obligations, we have been able to recover substantial damages for our client against the company which the client had been contracted to undertake the work for.

In 2016, our client had been requested to attend at the premises of a contractor to undertake work which was required to be done at about 4 to 5 metres from ground level. On previous occasions the contractor had provided a scaffold tower for similar work, but on this occasion did not do so, claiming that the tower was not available as it was being used elsewhere on site. As an alternative an inappropriate ladder was provided. Unfortunately the ladder was not suitable for the job and whilst the work was being undertaken, the ladder slipped and our client fell to the floor sustaining a head injury and significant orthopaedic injuries. The consequences of these injuries caused him to suffer significant loss of earning and a long term compromise on his ability to continue to work in his chosen field of employment

The specialist team, headed by Mark, were able to advise our client at an early stage that he had a claim with good prospects of success but equally address the issue that, an experienced contractor who probably knew with hindsight that using a ladder was inappropriate, the case was likely to succeed with some finding to reflect the fact that to a degree our client was the author of his own misfortune. This is known as contributory negligence.

As a result of our experience and knowledge we were able to analyse the issues of the case early upon instruction and having been able to put together a detailed and thorough letter of claim, present an early and favourable Part 36 offer to settle the liability issue with a small finding of contributory negligence. The Part 36 offer created significant cost risks and as a result of submitting the letter of claim and the Part 36 offer in close proximity, the insurers agreed the liability issue leaving the value of the claim then to be resolved.

Having obtained the appropriate evidence from Orthopaedic, Neurological and Dental experts, we documented the significant claim for damages for pain, suffering and loss of amenity and could also establish a substantial claim for past and future loss of earning to age 70, our clients intended retirement age and future treatment costs.

A very substantial six-figure award in damages was recovered plus the client’s costs and was agreed shortly before the Court proceedings needed to be commenced.

Commenting on the case, Mark Hambling, Director in the company’s Personal Injury Department indicated as follows:

I remember the client coming to see me some time after the injuries had been sustained as his initial thoughts had been that it may be difficult to pursue his claim as he was a self-employed subcontractor. I was able to swiftly explain to him how the law will assist him, in particular having regard to the previous conduct of the contractor, the fact that my client was working at height and the element of control the contractor had over the work being undertaken. It was clear at an early stage from my investigation that given my client’s experience and the facts of the case, that a finding of contributory negligence was likely and an early Part 36 offer was able to swiftly deal with that issue, protecting my client’s position as regards to costs. This was a case where the insurers for the Defendant were extremely sensible and engaged in sensible settlement negotiations, saving the costs of issuing proceedings whilst also ensuring that my client recovered full compensation, save for the small percentage deduction to reflect contributory negligence.

My client was delighted with the outcome and told me shortly after settlement that I provided an excellent and professional service achieving an award far in excess of his expectations when he first consulted Rogers & Norton. I was delighted to note that he would not hesitate instructing my colleagues or I in the future should he ever require further legal advice or assistance.

Mark Hambling is a Director of the company’s Personal Injury Department, a Senior Litigator with the Association of Personal Injury Lawyers and a specialist at handling high value and complicated personal injury claims. Mark will consider cases on a No Win No Fee Agreement and is happy to offer an initial discussion as regards any claim without obligation and cost. Mark can be contacted on mbh@rogers-norton.co.uk and by telephone on 01603 666001.

Small claims court law reforms

In his 2015 spending review, Chancellor George Osborne has vowed to reform the law relating to Personal Injury practice by raising the Small Claims limit to £5000.00 from its current level of £1000.00. In the small claims court cases are generally pursued by the parties acting in person, not least as a result of the restrictions on the court to award their costs to the winning party.  Although the small claims court limit has been set at £10,000.00 since the 1st April 2013, claims involving Personal Injury with a value over £1000.00 have been excluded and in 2013 it was acknowledged by the Government that there was no justification to increase the  limit in respect of Personal Injury claims.

The chancellor’s justification for his announcement is that this will provide significant savings to the insurance industry who generally underwrite such claims and he estimates a saving of £40.00 to £50.00 per household each year that he expects the insurers to pass on to consumers. This of course remains to be seen as following earlier reforms there is no clear evidence that insurers have passed on premium savings.

There is a real risk that this change if implemented will lead to a significant imbalance in power between the parties in a Personal Injury claim and quite possibly lead to legitimate claims not being pursued or being in appropriately presented. If the limit for Personal Injury claims is raised to £5000.00 then a vast proportion of Personal Injury claims will be subject to a system of very low fixed costs which will make it either impossible for the client to instruct a solicitor to pursue their claim, or use a proportion of their damages, intended to compensate them for their pain and suffering, to fund their legal costs.

Commenting on the proposed reforms Mark Hambling, director of Rogers & Norton and a senior litigator accredited by the Association of Personal Injury Lawyers commented as follows. “The biggest fear is that innocent victims of accidents will be forced to fight claims themselves when faced with an insurer who has a limitless legal budget. As a consequence their is a real risk that many legitimate Personal Injury claim may fail, be settled at an undervalue or not pursued at all, as a result of the innocent victim not having the benefit of legal advice, given the inability of recovering the costs of seeking that advice.”

Although many personal injury claims will fall outside of the £5000.00 ceiling, that does not mean that those claims below the limit are any less meritorious and therefore the victim, who will often need there compensation to cover medical expenses and loss of earning, should not be deprived of their compensation or forced to use a proportion to fund their legal costs, which in the absence of this change would be recoverable.

It is therefore important that the voice of innocent victims is heard when the government consults on these changes in 2016 and Rogers & Norton intend to insure the voice of the innocent personal Injury victim is presented.

Mark Hambling is a director in Rogers & Norton’s Personal Injury team and an Accredited Senior Litigator with the Association of Personal Injury Lawyers.  He can be contacted on 01603 675637 or by email at mbh@rogers-norton.co.uk.

Donns go into Administration

It has been reported in the Claims Magazine today that Donns, a Claimant firm of solicitors in Manchester has gone into administration.

Please see the attached link for further details http://bbm-news.net/pinews40/FOB-F7Y-D220HPCK2E-AGK82-1/industry.aspx?dm_i=FOB,R2IV,20HPCK,26POQ,1

It appears that many clients will now be contacted by Irwin Mitchell and be invited to transfer their file to this alternative firm. Given that Donns acted for clients nationwide there may be many local clients who would like to use this opportunity to enlist the services of a local solicitor rather than Irwin Mitchell. If any client wishes to exercise their freedom of choice, Rogers & Norton can assist and we would be more than happy to discuss any potential cases and arrange the transfer of files to this practice if required.

For more information please contact our Personal Injury experts on claims@rogers-norton.co.uk or call Mark Hambling or Tim Nobbs on 01603 666001.

Long battle ends in success

A 5 year fight is over following a decision by the UK’s highest Court which now means that employers’ insurers will be obliged to pay compensation claims of those suffering from or the families of those who have died from mesothelioma, a disease that can lay undetected for many years. It means that many thousands of people will at long last be entitled to compensation following the landmark ruling that the liability of insurers arises at the date of exposure to asbestos and not when symptoms of mesothelioma are detected which may be decades later.

Yesterday the Supreme Court delivered a long awaited landmark Judgment in what has been termed the mesothelioma “trigger litigation” which has seen a long running Court battle at an end, the Supreme Court having now ruled that the relevant date for the purposes of entitlement to compensation is the date of exposure and not the date when symptoms may develop or manifest themselves which can be many years later.

This particular issue related to the stance taken by a number of insurers that they were not obliged to pay out on such claims and that the key date for claiming arose at the date that the disease developed. This ruling has ended that argument in confirming that the relevant date is the date of employment during which the exposure occurred.

This will be of some comfort to those who have contracted mesothelioma, an insidious cancer, as well as their loved ones who will be able to pursue claims against the insurers as a result of their exposure to asbestos resulting in them contracting the disease.

For those who are suffering such condition and those who have lost their personal battle but whose families continue to pursue for their just entitlements, this decision brings to an end a whole host of test cases which have challenged the entitlement of those exposed to asbestos being able to recover compensation.

These cases are particularly difficult and raise a variety of complex legal issues. Expertise as well as compassion and the ability to empathise are key elements in ensuring that those who are entitled to compensation secure that compensation.

Rogers & Norton's Personal Injury Department has dealt with a number of significant asbestos cases and to achieve a successful outcome requires stubborn determination and frequently detailed forensic investigation in respect of a client’s employment history. This calls for professionalism, determination and compassion in equal measure.

If you would like to talk to one of our lawyers about whether you may have a possible claim for compensation relating to exposure to asbestos then please contact us on 01603 666001 for a free initial consultation.

When and how should Court assess chances in Personal Injury claims?

The Claimant was employed by the Defendant as a diamond core driller and as part of his employment was provided with the use of a company van. For some time the van doors were defective and as a result the Claimant was required to squeeze through the gap between the driver and passenger seats, move the content of the storage area of the van to the side, slide two 25 litre barrels of water to the side and then push the van doors open.

Whilst undertaking this task on the 16th March 2006 the Claimant suffered a significant prolapse of the disc in his back at L4/5 which despite surgery left the Claimant with substantial symptoms, permanently restricting his day to day activities and rendering him permanently unfit to work.

It was agreed medical evidence that the Claimant was suffering from a significant prolapse and that as a consequence he was left with a permanent disability and an inability to return to work.

The issues for the court to decide were the extent to which the Defendant employer was liable to the Claimant and if liable the extent to which the agreed injuries were caused by the negligence of the employer.

Liability settled just before trial with the employer finally accepting liability with a very small reduction for contributory negligence to reflect the risk of litigating the case before a Judge.

The issue of causation went to a hearing before the Norwich County Court were the Judge heard evidence from two expert orthopaedic surgeons. For the Claimant the opinion was that but for the accident this injury would not have occurred and even if the Claimant has suffered a prolapse it would have been very unlikely to have been as severe and without the significant consequences which occurred after the injury. For the Defendant the expert gave a view that the injuries would have occurred in any event within two years given the Claimants heavy work and smoking and that when the symptoms occurred they would have more likely than not been the same. However in cross examination the Defendant's expert made numerous concessions as to the percentage chance of the the symptoms being either:

• As severe
• Of similar nature
• With the same effects on work and
• With the same urological consequences

As a result the Judge at first instance heard submissions from the Claimant that when assessing what would have happen in the future but for the negligent act that he should take account of the various risks and chances in particular given the view of Lord Diplock in Mallett v Mcdonall [1970] AC166 which stated :

The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

The Defendants sort at first instance to distinguish these appeal cases as only relating to a claim involving fatal injuries and that a judge should decide all matters on the "balance of probabilities" which is the test used by the court when addressing matters of past fact.

At first instance HHJ Curl sitting in the Norwich County Court held that the Defendants’ medical view was correct and applied the balance of probabilities test. As a result because the view of the Defendants’ expert was that it was over a 50% chance, although nowhere near certain, that the Claimant would suffer the same symptoms the Claimant should only recover compensation for two years. This was the period over which the Claimant would have developed the same symptoms in any event according to the Defendants’ expert.

The Claimants appealed on the ground that the Judge did not correctly apply the law which required him to reflect the risks of various possible outcomes, to include never suffering symptoms to suffering similar symptoms, when assessing the basis on which the Claimant should recover damages. As such the initial trial judge when accepting the Defendants view had incorrectly failed to take account of the concessions made by the Defendants’ expert in cross examination.

The Court of Appeal heard representations from both parties and held that the Judge at first instance had failed to apply the correct test and should when assessing future loss reflect the risk and chances of a future event happening as established in Mallet v McGonagall 1970 and to that extent the appeal Judges were with the Claimant. However the Court felt they could still uphold the Trial Judge's finding of two years by following an authority of Kenth v Heimdale Hotel Investments Limited [2001] EWCA Civ 1283 which held that one way of assessing risks and chances is to apply an acceleration which was an acknowledged broad brush approach. As such the Claimant received damages for a two year period.

COMMENT

This is undoubtedly a disappointing result for the Claimant who on the one hand succeeded on the legal issue before the Appeal Court yet then failed to recover any increase in damages as a result of the Judges upholding the finding on acceleration, whilst recognising the Norwich County Court wrongly applied the law. It is difficult to believe that had the Judge in Norwich at first instance correctly applied the law that he would have awarded the Claimant the same two year acceleration if he had factored in the various risks, which he failed to do when applying the test of balance of probabilities, which he should have done. As a result it is disappointing that the Court of Appeal, having found for the Claimant on the law, did not then allow what the Claimant argues would be more appropriate damages.

However the case demonstrates the importance of, when assessing future losses, considering all of the events that may or may not happen before a Court awards or solicitors agree damages. Whilst the acceleration approach of awarding damages for a period of 2, 3 or 10 years (as an example) may be correct and regularly applied this must be done on an analysis of the evidence and if appropriate an assessment of the future risks rather than because on the balance of probabilities it is found.

Inevitably whilst we were disappointed that the Claimant recovered no further damages, the case did prove a very important legal point. It also demonstrates that at a time when lawyers are challenged for the use of No Win No Fee agreements, if used properly they are a significant benefit to Claimants. Indeed it is likely that without a system which allows success fees in No Win No Fee agreements to be recovered this case may not have been advanced. It is therefore very disappointing that the current government are seeking to remove the recoverability of success fees which underpin the risks lawyers take in substantial cases such as the one under discussion.

If you wish to discuss this article or the current proposals to change the recoverability of success fee or discuss any possible claim please contact Mark Hambling mbh@rogers-norton.co.uk

22nd December 2011

Heights to Haircuts!!!

Mark Hambling, Partner, Law Society Accredited Personal Injury Lawyer and Association of Personal Injury Lawyers Senior Litigator, has recently concluded an interesting case which saw the Claimant make an interesting and enforced career change.

The Claimant worked as a scaffolder and suffered a significant head injury when struck by a falling metal scaffold sleeve. The facts, in the absence of the serious injury, could form the basis of a comedy sketch. The Claimant’s colleague was Polish and had a tendency to swear on site for no apparent reason, usually in Polish and therefore his language was generally ignored. However on the day in question he dropped a metal scaffold sleeve and rather than shouting "look out" he swore and was unfortunately ignored. Tragically the sleeve struck the Claimant on the head causing a fractured skull, soft tissue injuries to the spine and neurological symptoms such as problems with memory and learning.

The Claimant required surgery to elevate his depressed skull fracture and was in hospital remarkably for only 7 days before his discharge to be monitored by out patients.

The insurers of the scaffolding company admitted liability for the unsafe system of work which was used to raise the scaffold fittings to the construction. Despite the scaffold company entering liquidation during the litigation the claim was pursued against the company, who had relevant insurance, with permission of the Court.

The only issue to determine was the extent of injury caused by the accident, the value of that injury and the losses flowing from the injury. Medical evidence was necessary from a Neurologist, Neurosurgeon, Neuro Psychiatrist, and Plastic Surgeon. It was established that the Claimant had suffered a depressed fracture to the skull which had left a permanent cosmetic appearance. He had also suffered trauma to the brain which would again cause minor permanent problems with memory and learning as well as interaction. His soft tissue injuries to the spine which were caused by the compressive force of the metal sleeve healed over a two year period.  However psychologically it was established that he could never work in construction again and would have to consider a change of career.

The Claimant had some pre accident experience as a hairdresser having trained with Nicky Clarke, although he had given this up to train as a scaffolder and earn a higher salary. The Claimant therefore returned to the hairdressing trade once he was fit to work. He was however starting from scratch again and despite efforts in some top London and regional salons and a summer of experience working on fashion shoots and parades in Ibiza he was struggling to hold down a position and had lost several positions.
Our involvement was to present a proveable argument comparing his potential earnings as a hairdresser and scaffolder, analysing when the two would, if ever, reach parity. After numerous statements from past and present employers and a detailed review of the hairdressing opportunities as well as considering how the Claimant would have faired but for the accident as a scaffolder in one of the worst recessions ever, the claim settled at a round table meeting with the Defendants at a figure substantially ahead of £200,000.

COMMENT
This case raised all the issues I could expect. Whilst liability was resolved in the Claimant’s favour a detailed knowledge of the Health & Safety at Work legislation was required to prove this. The case had the added complication of an insolvent Defendant which required a successful application to the Court to allow the case to proceed.

In relation to the injuries a thorough understanding of the medical case was needed to enable the right experts to be selected from our panel of the best available. What was then required was the time and experience to investigate the pre and post accident work options to present a case on value to support the past and future loss of earning as well as providing for the future risks, in particular the inability to return to scaffolding if he never achieves parity of earnings as a hairdresser.

The case highlights the need to use an experienced Personal Injury Lawyer to pursue your claim if you unfortunately suffer an injury. There are a variety of potential claims within each case which will require consideration and the lawyer instructed must investigate these thoroughly to ensure the Claimant achieves the right level of compensation.

If you wish to discuss this article or have a potential claim you wish Rogers & Norton to advise upon please contact Mark Hambling on 01603 675637 or mbh@rogers-norton.co.uk.

ROGERS & NORTON PERSONAL INJURY LITIGATORS REACCREDITED

We are delighted to announce that Tina Myhill and Mark Hambling in our Personal Injury Department have successfully been re accredited by the Law Society as Members of the Law Society’s Accredited Personal Injury Panel.

This Accreditation demonstrates the practices commitment to ensuring the highest level of expertise in their lawyers. It also provides clients with the assurance that both Tina and Mark have been assessed independently as experts in the field of personal injury law.

At a time when there are many possible opportunities to seek advice in relation to  a potential personal injury claim, it is important to ensure the person being instructed is an expert and recognized as such by an independent body.  This accreditation provides reassurance to both clients and potential clients of the practice of the expertise and ability that Rogers & Norton has and sets us apart from many of our competitors.

In relation to Mark Hambling the Law Society Accreditation accompanies his Accreditation with the Association of Personal Injury Lawyers as a senior Personal Injury Litigator.

Corporate Manslaughter Seminar 26th November 2008

On the 26th November 2008 Rogers & Norton in conjunction with Heath Lambert Group hosted a seminar on the impact of Corporate Manslaughter and Corporate Homicide Act 2007.

The seminar at Dunston Hall was attended by over 70 delegates and involved presentations by Mark Hambling and Phil Kerridge, both partners in the practice. Phil analysed the law prior to the 2007 Act coming into force on the 6th April 2008 and considered the law which remains in place following the Act and the current sentencing regime under the Health and Safety at Work legislation.

Mark analysed the new Corporate Manslaughter and Corporate Homicide Act 2007 and provided an overview as to what will need to be proven for a successful prosecution and advised on the steps that employers should take so as to ensure that they do as much as possible to avoid prosecution in the unfortunate event of a fatality in the workplace

Commenting on the seminar Mark Hambling indicated that "Rogers & Norton were delighted to be able to co-host this seminar with Heath Lambert and analyse both the legal and insurance issues. The seminar was very popular and clearly demonstrated the awareness of local businesses as to the impact of this Act and the need to be pro-active in ensuring compliance with the legislation".

Following the seminar both Mark and Phil indicated that they are more than happy to discuss, without obligation and initially without charge, the impact of the new Act should any delegate wish to make contact

Although the seminar has now concluded, both Mark and Phil will be happy to answer any further questions on the impact of the Act and can be contacted on the details listed below.

Philip Kerridge
Telephone: 01603 675612
Email: pnk@rogers-norton.co.uk

Mark Hambling
Telephone: 01603 675668
Email: mbh@rogers-norton.co.uk

Personal Injury case track limits: The proposed changes

Since 2007 the Ministry of Justice have consulted on reforms to the Personal Injury Claims process to achieve a quicker process where appropriate and more proportionate costs. The outcome of the consultation was published on Monday 21 st July 2008.

Several changes are proposed, aimed at speeding up the process and several options considered have been discontinued due to the force of representation. The key changes that may affect the client pursuing or resisting a personal injury claim are as follows:

The small claims track limit for personal injury claims which has been set at £1,000 for the value of the injury claim for some time will not increase.

The limit on fast track claims currently set at £15,000 will be increased to £25,000.

There will be a new claims process for road traffic accident claims where the value of the claim is £10,000 or less and there is no dispute on liability, the cause of the injury or allegations of contributory negligence. This process will be accompanied by a fixed recoverable cost system to regulate the level of costs that can be recovered.


Commenting upon the changes, Mark Hambling, a Partner in the firm’s Personal Injury Department indicated that he welcomes the Ministry of Justices’ decision to maintain the small claims limit for personal injury claims at £1,000.

“This is important in ensuring that those that unfortunately suffer personal injury claims have the ability to pursue their claim with the advice and representation of a qualified lawyer without their claim being at risk of falling into the small claims track. The initial proposals considered increasing the small claims limit for personal injury claims to £5,000 which would have prevented many cases being dealt with by solicitors and this would have significantly curtailed the access to justice for those suffering injury.”

Whilst it was perhaps inevitable that the fast track limit was going to increase, it is hoped that this will improve the speed in which relatively straightforward personal injury claims can be resolved. It is however of some concern that under the proposed reforms there is no procedure whereby complex claims which may have a value less than £25,000 but which are complex on the issues and more suited to the multi track procedure can be moved from the fast track to the multi track. This may lead to further litigation before the Court in arguing whether a case should be transferred even though the value falls within the new fast track claims limit. It will be interesting to see how Judges react to such applications.

THE NEW ROAD TRAFFIC CLAIMS PROCEDURE

This new procedure will create a system where the solicitor representing the Claimant will need to send a notification of claim to the Defendant within 5 days of obtaining all of the information required. The insurer then has only 15 days in which to respond within an indication on liability and no extensions of time are likely to be allowed. In effect in a relatively short period of time in a road traffic accident case where the value will not exceed £10,000 the insurer will have a very short period of time in which to consider liability and confirm whether this is admitted. There will then be processes whereby the solicitor would put together the medical evidence and prepare a settlement pack to send to the insurer who will then have a further 15 working days upon receipt of the pack to accept or reject an offer to settle. It is quite clear that this new process could significantly speed up the claims process however there will be a need for caution to be exercised by the solicitor to ensure that all of the medical evidence is accurate and the prognosis clear before advising a client on a full and final settlement.

It must also be noted that under this procedure, if the insurer denies liability, argues to any degree that the person bringing the claim was responsible or denies that the injuries were caused by the accident, the claim will fall out of this new procedure and proceed in line with the current process, more likely than not within the fast track limit.

CONCLUSIONS

It should be welcomed that the Ministry of Justice have maintained the small claims track limit and it is hoped that the new road traffic accident claims process will be a success. However there must be some concern that in relation to both this new process and the new fast track limit that this will include claims that are complex and perhaps not completely suited for a streamlined process. It is therefore hoped that there will be some provisions for claims that are unsuitable for the process on the issues to be moved into the multi track where appropriate.

It is however disappointing that in relation to the reforms the Ministry of Justice have not considered whether provision could be made for the better implementation of the Rehabilitation Code of Best Practice. It is as important that a Claimant receives early treatment and management of an injury at an early stage as it is that they are suitably compensated at the conclusion of the claim. It is therefore disappointing that the Code of Best Practice on Rehabilitation, which is at the moment part of the Personal Injury claims Protocol was not mentioned in the proposed reforms. It is also disappointing that the reforms do not further emphasise the need for early interim payments in suitable cases and in particular in larger claims. In the absence of any mention of this in the reforms it is likely that in the event of an insurer not voluntarily agreeing to an early payment on account, Court proceedings to seek an interim payment will have to be issued.

Finally there is no timescale in terms of the implementation of these proposals and it is therefore necessary to “watch this space” as to when the proposals are implemented and what, if any, changes are made between now and the implementation”.

For further information on the proposed changes or to discuss any specific case that you may wish to advance or defend please contact Mark Hambling on 01603 675637 or mbh@rogers-norton.co.uk.