£1.7m Settlement for Orthopaedic Injuries

02/11/2023

James Arney KC was instructed by Lucy Lenehan of Irwin Mitchell on behalf of a 50-year old man who was knocked off his motorcycle in 2018. Quantum was driven by orthopaedic injuries, most notably to the Claimant’s hips and knees. The agreed medical evidence was that the Claimant would require joint replacements to both hips and both knees before the age of 65. The experts disagreed as to the likelihood and timing of subsequent revision procedures, and as to the extent of associated disability.

Loss of earnings were hotly contested. The Claimant continued to work as a Television Executive Producer, with a track record of producing numerous reality television programmes that are household names. Whilst inevitably requiring time off during the initial recuperation phase, the Claimant had returned to full-time work and continued to be successful in his pre-injury career. He remained engaged under a fixed term contract, giving him greater job security than the self-employed industry alternative. The Claimant advanced a 7-figure future loss of earnings claim, calculated in accordance with the Ogden 8 methodology, based on uninjured multiplicands which reflected the lost opportunity of pursuing more lucrative self-employed work in the US and/or involving self-shooting projects in exotic but dangerous locations. The Defendant conceded only minimal loss associated with limited time off after future surgeries, denying an Ogden 8 approach, and emphasising that the Claimant had continued to progress his career during the 5 years since injury and contending that his transition to UK-based fixed-term-contract work was a life choice consistent with his family commitments.

Another major head of loss was accommodation, where the Claimant continued to reside in his pre-injury south west London townhouse. His accommodation claim, with similarities to the factual circumstances in Swift v Carpenter, sought a move to a larger property that could accommodate a through-floor lift, given the paucity of single level housing stock in his location. The Defendant denied any need for special accommodation, emphasising that each floor of the existing property had bathroom facilities, and contending that during future post-surgery periods of recuperation, a stairlift would adequately meet the Claimant’s needs.

The stark feature of this case was that losses to date, spanning over 5 years, were incredibly modest. Discounting loss of earnings based on speculative lost opportunities for overseas work, they amounted to less than £40,000. The Claimant continued to live in his pre-injury home, and continued to work full-time in his pre-injury career, earning more than he had done pre-injury. It was also accepted that he currently received no care and domestic assistance, either commercially or gratuitously. The value of the claim was therefore entirely dependent on future deterioration and losses that were claimed to flow from a residual lifetime under the surgeon’s knife. The Defendant maintained that he would continue to negotiate these issues without substantial loss, as he had done to date.

Having failed to settle at a previous JSM, the parties engaged in a second round of negotiations with a 10-day trial looming. Settlement was agreed at £1.7m. This figure was consistent with: –
• Minimal past loss.
• General damages in the region of £100,000
• A valid accommodation claim, but one that would not crystallise until later in life, at a time when the Claimant’s uninjured property needs would naturally be reduced.
• A compromised approach to future loss of earnings, scaling back on speculated lost earnings and adjusting the disabled Reduction Factor under the Ogden 8 methodology to reflect the Claimant’s continued full-time work to date.
• Future treatment, therapies, transport, care and assistance and holiday losses commensurate with a compromise between the orthopaedic experts’ competing positions.