Good settlement, sloppy defence..

24th July 2012 Personal Injury

I've recently had the pleasure of settling a case for a client I've been dealing with for just over four years, and I've finally been able to get him the settlement he deserves, the best efforts of a sloppy defence notwithstanding.

While that might sound a bit facetious, this really was a case where the defendant actions have been somewhat unbelievable at times and was, I believe, hampered by inexperienced and ineffective handling by a defendant insurer and solicitor.

Let me paint a picture of the case for you. The client, a professional working in London, was on a training cycle ride as part of his training as an amateur competitive triathlete and was knocked off his bike by a car turning across his path, into a side street. His injuries were relatively serious, although not catastrophic, with a fractured collar bone requiring surgery and a serious knee injury requiring an arthroscopy. His injuries also accelerated a pre-existing knee condition by ten years, and we obtained medical evidence to suggest that the client would need another arthroscopic intervention in his 50s, a knee replacement in 60s, a revision in his 70s and if still alive possibly another in his 90s, along with continuing physiotherapy once every month for the next 20 years.

Before all the medical evidence had been obtained and disclosed to the defendant's insurers, they decided to make offers in settlement of general damages; £4,250 and

£5,750. Even on the basis of the medical evidence we had disclosed at this stage, these offers were too low, and had been made prematurely, as the defendant's insurers were aware that the medical evidence was not complete. It had been highlighted to them that my client was not recovering as predicted, and hence required an additional prognosis from a specialist lower limb surgeon. This should have been an indicator that the case was going to be worth more than they may have initially thought.

Then, after my having issued proceedings but before they got their own medical evidence, the defendant's insurers (who at this stage had handed the case to a solicitor to represent them) made a global offer of £21,000, effectively an offer of just over £10,000 to cover all heads of loss, as they had paid over £8,500 in medical treatments and £1,800 in interim payments on the case at that stage.

While someone not versed with the relevant guidelines may consider that to be a good offer, I already knew realistically that my client's case was worth at least £50,000. This was based on the same medical evidence that we had shared with the defendant, and so one would assume that a competent solicitor would arrive at the same conclusion I had, so this figure felt somewhat ridiculous. While each case has to be evaluated separately, and each set of injuries has a differing effect on the injured party, it's fair to say that this offer didn't realistically give scope for compensating my client for his injury, supporting him through the treatment processes he would have to undergo for the rest of his life and the effect the injury had on his lifestyle.

Last summer, the defendant's solicitor got their own medical evidence. In September, I advised the client that we should make an offer of £75,000 in full and final settlement, but net of the interim payments he had already received, just before their medical evidence was served. Having consulted with a Barrister, both he and I felt this was a fair offer that accurately reflected what our medical evidence had shown our client would require in terms of continuing care, and the client consented to making the offer. The offer was rejected on the same day, with a one line letter.

It's fair to say that this rejection was unreasonable, as it showed a clear lack of analysis of the case and the various heads of loss I was presenting on my client's behalf. It's also fair to say that in most circumstances, a serious settlement offer (which ours was) would be given more than a day's worth of consideration!

To jump ahead to this March, past a dialogue that has included their expert's evidence, their putting questions to our client, a case management hearing, a listing appointment, a joint statement from both medical experts, a conference with our lower limb medical expert (a Professor who specialises in complex fractures, limb lengthening and deformity correction, incredibly talented and highly appropriate for the case) and listing questionnaires and a costs estimate filed, we had a joint settlement meeting. At the joint settlement meeting, a final, global figure of £83,281.31 was agreed. This was just  £2,500 short of the £75,000 offer we'd made, when the interim payments were subtracted from this amount.

After the joint settlement meeting, when reflecting on the course matters took during the day, it was clear to me that the defendant's solicitor had messed up on their offers previously, and that their Barrister was trying his best to get it sorted. Although we reiterated our previous offer of £75,000, it was not accepted, and I anticipate the main reason for this would be down to the fact that the defendant's solicitor was not keen on explaining to her insurer client why she didn't accept my original offer six months earlier.

As an organisation, JMW is always committed to getting the best results for its clients, and I believe in upholding this commitment when working on behalf of all my clients. We always aim to achieve a quick settlement, and quite frankly, proceeding to a joint settlement meeting on a case such as this should not have been necessary as the client's heads of claim were quite clear, and we were not being unreasonable in our initial offer of £75,000. That the defendant ultimately accepted an offer only just below the offer demonstrates this and I find it truly frustrating on behalf of the client (and other innocent claimants who simply wish to conclude their case) that he was forced to go through the ordeal of another six months of uncertainty and doubt thanks to sloppy work on the part of the defendant.

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Nadia Kerr is a Partner located in Manchesterin our Bicycle AccidentsPersonal Injury departments

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