The role of a serious injury lawyer is varied and complex. Our clients have sustained life-changing injuries which have a long-term impact on all areas of their life including their family life.
The Serious Injury Guide 2015 (the Guide) seeks to put the interests of the seriously injured person at the centre of the litigation and accompanies the Rehabilitation Code 2015.
Although the Guide is not mandatory, many claimant and defendant solicitors and insurance companies have become signatories to the Guide and commit, on behalf of their organisations, to comply with the principles and ethos.
The aims of the guide are to resolve liability as quickly as possible. It provides early access to rehabilitation for claimants to maximise their recovery where it would be beneficial, to resolve claims cost effectively and proportionately and within an agreed timeframe, and to create an environment of mutual trust, transparency and collaboration.
Our clients’ worlds have been turned upside down. They want to maximise their recovery. There is often an unrealistic expectation as to how they might recover to their old life, certainly initially due to limited insight.
A serious injury lawyer’s role is to manage their expectations, agree with the defendant about rehabilitation funding or take advantage of deferred payment arrangements or private insurance and make the necessary introductions to first class clinicians and therapists.
With serious injuries, there is often a small window where our clients can maximise their recovery. It is vital that rehabilitation is considered at an early stage. Our clients frequently say that the acute and often life-saving treatment they have received is first-class, particularly if they have been treated in a major trauma centre, but that the rehabilitation is then quite limited thereafter.
Effective rehabilitation can vary significantly. A serious injury lawyer will consider the injured individual’s as a person and focus on all of their needs. This includes housing, aids and equipment, care, social enablement, transport, financial security, re-assurance about the future, therapy, medical treatment and other legal services that they may benefit from.
In this section, I have identified what has worked particularly well on Irwin Mitchell’s serious injury cases. It is recognised that there may be other ways in which to showcase best practice.
Collaboration with the defendant’s legal team is vital. There should be a genuine commitment to resolve liability as quickly as possible and focus both before and after liability has been resolved, on maximising the injured person’s recovery.
This could include agreements with defendant legal teams, which include no early Part 36 offers before a negotiation meeting has taken place, interim payments and rehabilitation funding in exchange for access to the injured individual for medico-legal examinations. Other requirements could be voluntary disclosure of records and frequent dialog between the parties to focus on and narrow the central issues. This could also mean the defendant legal team attending MDT meetings when appropriate.
Joint or unilateral instructions will need to be considered on a case-by-case basis but my view is that jointly instructed rehabilitation providers are much better than having no rehabilitation providers if liability is disputed.
The rehabilitation must never become standard or generic. The rehabilitation must be tailored to each and every injured individual that we represent. They will all have different functional impairments. The lives they had and the lives they want will be completely different. Their motivations will be different. If the rehabilitation is tailored to the individual and they have bought into what the rehabilitation team is trying to achieve, the goals will be clearly identified which will avoid any arguments about recoverability at a later stage.
The goals must motivate the injured person. If they do not, the serious injury lawyer should question whether that form of rehabilitation is the most appropriate way to maximise their recovery.
The serious injury lawyer should attend the MDT meetings if at all possible. The legal claim is a significant part of the injured person’s life. There is an overlap because the claim is funding the private input. The clinicians and therapists should have a good relationship with the serious injury lawyer. They should be able to pick up the phone to talk through any challenges faced. The claim and the rehabilitation should never be seen as two separate processes.
Consideration should also be given to other legal or financial services that the client may require. This may include investment advice, setting up a personal injury trust or applying for a Deputyship Order, creating or updating a will, executing a Power of Attorney or seeking employment advice if the injured person is at risk of losing their job. Also, conveyancing may be required if there is a need for alternative accommodation, as well as family law if a relationship has broken down or is at risk of doing do. Irwin Mitchell is a full-service-offering law firm; we view holistic legal advice as a central part of the rehabilitation process. If the injured person’s legal needs are protected, they can focus on maximising their recovery.
The benefits of rehabilitation
In early 2017, Simon sustained serious injuries following a road traffic incident. The defendant driver was primarily at fault however Simon accepted that he held a proportion of the responsibility for the very unfortunate incident and the resulting injuries.
Simon was treated at the Queen’s Medical Centre. He was then transferred to Royal Derby Hospital where he remained for a period of six months. He received life-saving treatment. He was diagnosed as suffering from a severe traumatic brain injury. A CT scan identifiedleft frontal and parietal haemorrhages alongside the presence of a thalamic haemorrhage which indicated a diffuse axonal brain injury.
An initial notification letter and a letter before action were sent quickly to the relevant insurer to enable them to undertake their investigations quickly. In the letter, Irwin Mitchell indicated a preference to deal with the claim in accordance with the Guide.
Within days, there was dialog between both parties. The criminal proceedings were ongoing but despite that, the insurer agreed to fund rehabilitation assessments, the funding of which was of course without prejudice to liability at that stage. The parties also agreed to attend a way forward meeting with an acceptance that face-to-face contact, on serious injury cases, is particularly useful to build an effective working relationship, identify the central issues and plan a way forward.
At the way forward meeting, Simon and his family attended. There was a commitment to putting Simon at the centre of the process. The insurer and their solicitors gave a further commitment to funding rehabilitation. The parties agreed that no Part 36 offers should be made at least until they had had a joint settlement meeting at the appropriate time. As a result of this agreement, Simon was willing to allow the insurer’s solicitors to attend the multi-disciplinary team meetings. There were additional face-to-face and telephone discussions frequently between the legal teams.
The criminal investigation was ongoing. The parties managed to secure early disclosure from the police in accordance with the National Policing Guidance issued by the College of Policing. This enabled the parties to discuss the issue of liability. There was acceptance on behalf of Simon and his legal team at Irwin Mitchell that there would be contributory negligence.
A sensible position was adopted. The parties had a number of informal discussions about the percentage reduction that should apply. An apportionment was subsequently agreed at 70:30% in Simon’s favour. The parties negotiated a costs settlement at this point up until the date when the liability apportionment was agreed. The costs negotiations were dealt with quickly and sensibly, resulting in a rapid conclusion.
Despite this apportionment, the insurer continued to fund the rehabilitation programme at 100%, showcasing their genuine commitment to maximising Simon’s recovery. This enabled Simon to engage in his rehabilitation without worrying about paying for therapy at 100%, only to recover 70% from the defendant.
When discharged from the hospital, Simon struggled with his balance and required a wheelchair to mobilise. He also had reduced voice strength and slurred speech due to vocal cord palsy from his brain injury. Due to the input of early rehabilitation, Simon was able to mobilise independently, improve the strength of his upper limbs and improve the quality of his speech; which will have a great effect on Simon’s quality of life for the foreseeable future.
After Simon had benefited from rehabilitation for approximately 12 months, the parties’ solicitors agreed to pencil in a date for a Joint Settlement Meeting to take place in a further 12 months’ time (near to the 2ndanniversary of the incident). The parties’ solicitors scheduled telephone discussions frequently to update each other about key evidential developments and to ensure that the parties closely communicated. They also discussed the case at the multi-disciplinary team meetings.
The likely issues to be discussed at the Joint Settlement Meeting (care, deterioration, accommodation, Court of Protection) were identified and the parties focussed their efforts on securing evidence to ensure that there was a meaningful discussion at the meeting. Both parties had a significant amount of expert evidence. Simon’s legal team also obtained a significant amount of documentary and witness of fact evidence.
Just after the second anniversary, the parties attended a Joint Settlement Meeting. A sensible and fair settlement was achieved, taking into account both parties’ positions on the key issues. The outstanding legal costs were also negotiated on the day, meaning that both parties could leave the meeting with certainty as to their positions, subject to a few procedural steps that were required; namely, discharging the litigation friend as Simon had, largely through the effective rehabilitation that he had received, regained capacity to litigate and to manage his own property and financial affairs.
Showcasing their commitment one final time on this case, the insurer agreed to fund the rehabilitation at 100% for a further three months until the procedural aspects of the case had concluded.
The early settlement gave Simon the option to move on with his life relatively soon after the incident. He now has plans to purchase the property of his dreams and continue focussing on maximising his quality of life.
The way this case was dealt with was very refreshing. There was frequent dialog between the parties’ legal teams and the insurer. The insurer seemed genuinely committed to improving Simon’s quality of life through effective rehabilitation.
It even funded items throughout the case that theydid not think would make a huge difference but which were important to Simon. I was particularly impressed with the defendant’s solicitor.
Despite advocating the insurer’s best case throughout the litigation, she focussed on the key issues, raising their best points as and when required, whilst remaining pleasant, friendly and easy to deal with throughout. At the end of the litigation, Simon’s family even said that they would be sad not to see the defendant’s solicitor any more at the multi-disciplinary team meetings.
There were huge benefits to both parties as a result of utilising the Serious Injury Guide and complying with the ethos. The legal costs were significantly less than in most serious injury cases because of the sensible approach taken by all and the early rehabilitation which was implemented.
The issues were identified at an early stage and the parties focussed their efforts on resolving those issues. The defendant team were in the loop about the rehabilitation and understood Simon’s priorities. It was really refreshing to see how effective the Guide can work in practice for the benefit of the seriously injury person and their families, but also for other stakeholders to the litigation.
Simon is now receiving investment advice from IM Asset Management. He is updating his will and purchasing his own home. He has also been advised about the risk of any dependency if he enters into a relationship given that he has secured a significant sum of money to meet his reasonable needs for the rest of his life. His settlement money has been placed in a trust to provide some protection for the future.
David Withers, who represented Simon, is a partner in the serious injury team in Irwin Mitchell’s Sheffield Office. He leads a team of serious injury specialists dealing with life-changing injuries.