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Wednesday, 20 August 2014

The Bitter Sweet Story of a massive damages award

It is almost 15 years to the day since I settled what was at that time, the biggest case that I had ever handled.

John – not his real name – was born in good health. He then developed jaundice, which is not uncommon in young babies. In severe cases treatment is necessary either by phototherapy, using lights, or a full blood transfusion. So long as the condition is treated promptly there are rarely any major problems. John was born over a holiday period. The hospital staff, with the best of intentions, wanted to get the new young family home. He was discharged without being checked by a paediatrician. This was a catastrophic decision.

His condition deteriorated. By the time he was admitted to a local children’s’ hospital it was too late. He had suffered major and permanent brain damage.

This is a very oversimplified account of the medical issues but the outcome was that he had no use of his limbs, no speech and would need care from his family for the rest of his life. However, he was otherwise, as bright as the rest of us – if not more so.

Liability was disputed at first. However it seemed such a blatant case that, for the only time in my life, I applied to the High Court for summary judgment. This is a quick procedure to bring cases to a conclusion where there is no realistic argument. Surprisingly the NHS agreed and the case eventually settled for just under £2.5m which back then was a sizeable award.

There are still those who criticise victims and families for pursuing compensation claims for medical blunders. They are accused of draining the NHS and depriving other patients of the care they need. Others think of awards like this as if they were lottery wins. This could not be further from the truth. Compensation is needed to provide for the care and support necessary to give the victim a reasonable quality of life.

The reason I mention this story is that I am still in touch with the family. I have had a limited role over the years, assisting with occasional matters arising from the various trusts. So I have been able to see how the award has worked for John and his family. I met his mum recently. She told me that he has managed to get a University Degree. She said that he is now planning on working abroad for a year. Despite massive obstacles he is working toward a successful career. Now this is a tribute to John’s own determination and intelligence alongside the support from his family. But it is also a result of what has been achieved by a fair award of compensation for his injury which has provided the framework for him to develop.

We all wish that tragedies like this did not happen.

But those who go on and on about a compensation culture should, now and then, consider the real lives behind the stories.

Wednesday, 13 August 2014

Are we in a Post Legal Aid world?

I remember getting hot under the collar last year when I heard someone in the voluntary sector say that we were now in a ‘post welfare’ state. He was saying that we can no longer assume that the state will provide for those in greatest need and the burden will fall on charitable organisations. I disagreed with him but am beginning to wonder whether he has a point, certainly as far as legal services are concerned.

Should we now talk about a post legal aid world? That is almost certainly the case as far as civil and family work is concerned. It is now almost impossible to get legal aid for any claim involving damages. The last surviving area of work – Clinical Negligence - was removed last year, apart from a very narrow group of those who suffer a brain injury at or very shortly after birth. For most other work it has gone. 

The situation is worse for those in private family disputes. This problem has been highlighted by the President of the Family Division, Sir James Munby. In a recent decision he has said that there are cases where it is simply essential for there to be legal or representation or expert evidence. In a case involving the need for an interpreter and legal assistance he has said that the Court Service could be required to pick up the bill in the absence of legal aid –

"HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day."

This could leave us in the bizarre situation where the government refuses assistance via legal aid but ends up paying the cost anyway through the courts. This certainly makes it clear, beyond doubt that the need had not gone away. When the most senior Family Judge is making comments like this, no further comment is needed. But this would surely only ever happen in a small number of extreme cases.

The devastating cuts to legal aid funding are indefensible. But nobody expects it to be re-instated. I have not heard anything from the opposition to suggest any change at all.

So should we now be looking towards a new world?

Will we see a new generation of free legal advice centres, funded by charities, philanthropists, churches etc? I will argue to the death that it is the job of the state to ensure that everyone has access to justice regardless of means. This is sound politics. But in the meantime I suspect that the world has changed for good. So do we now need to look at other alternatives to ensure that people get the help that they need?


Wednesday, 6 August 2014

Blaming injury victims is becoming an industry

It seems that if you repeat a statement often enough, people will eventually grow to accept it as fact. This is certainly the case with the so called compensation culture. 

It has even been used today in relation to scandalous delays dealing with claims from injured armed forces veterans. One explanation for the delays on behalf of the government has been an alleged - "rising claiming culture" –

I’m not sure whether this statement is meant to suggest that war veterans are submitting claims that are not genuine!

The phrase is now in such common usage that any victim who seeks compensation is marked as being a part of this culture and therefore to be frowned upon. It is apparently of no relevance whether the injury is genuine or serious.

I have said many times that the ‘compensation culture’ is a myth which has been created by politicians and insurers and which has, for some reason, been promoted by the media.

This has been highlighted by a recent YouGov Poll reported in the Law Gazette last week. This revealed that only 25% of people who suffer from personal injuries actually go on to claim compensation. Various reasons are given for this reluctance ranging from those who believe that a condition or injury is not serious enough to those who object in principle to making claims. That is hardly the basis of a ‘culture’ and the report suggests that there has in fact been a reduction in claims.

The reality is that the majority of victims do not claim compensation. This is not a statement that you will ever hear from the government or the media. You will hear the opposite. You will hear that there is a culture that has to be eliminated. You will hear that this ‘culture’ is the fault of lawyers who spend their days chasing ambulances. In fact most lawyers are simply trying to do the best for victims in an increasingly hostile environment –

Yesterday I had a meeting with the mother and financial adviser of a lad that I acted for 15 years ago. He suffered a severe brain injury shortly after he was born, due to the negligence of a local hospital. We recovered several million pounds for him. He will shortly complete his degree and is considering working abroad. This has been achieved by his own intelligence and determination alongside the funds that were recovered for him all those years ago.Would somebody like to tell him or his family that he is part of a compensation culture?