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Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
17/11/2023
Lionel Stride (instructed by Tracey Benson and Mark Jackson of Slater & Gordon) represented a claimant who suffered a transtibial amputation after a motorcycle collision. A settlement of £4.81 million was achieved, reflecting the claimant’s need for adapted accommodation, impressive pre-accident earnings, and his exceptional facility as a user of prosthetics.
Background
The Claimant had been riding his motorcycle approaching a junction when the First Defendant turned across his path, causing serious injury that included a type-IIIB tibial fracture, disruption to the peroneal artery and degloving of the lower limb. Because of the extreme difficulty of reconstructing his limb, the Claimant later underwent an elective right below knee amputation.
As at the date of the JSM, the Second Defendant insurer had not formally admitted liability but the First Defendant had been convicted of driving without due care and attention and banned from driving for 6 months. Whilst accident reconstruction evidence was served with a view to justifying an allegation of contributory negligence, this merely demonstrated that the Claimant had likely been travelling within the speed limit and could not have avoided the collision.
Accordingly, the key disputes revolved around the major heads of loss, including (i) the Claimant’s loss of earning capacity as a result of the accident; (ii) accommodation, namely the cost of adapting his existing four-bedroom home for his current and future use; and (iii) an unusually expansive claim for prosthetics. This latter claim was justified by the Claimant’s high levels of pre-accident fitness and participation in multiple sports; and by his status, recognised by his rehabilitation medicine expert and treating clinicians, as one of the top 5% of all prosthetics users.
Critical Disputes
The dispute as to earning capacity centred on the Claimant’s likely retirement date, residual earning capacity and level of restriction (given his excellent function); the challenge to accommodation was based on whether the Claimant had spent sums beyond his clinical need; and the argument on prosthetics centred on the number required (7 versus 3) and, in particular, whether the Claimant could tolerate (and should be limited to) a sports prosthetic with sockets/changeable feet given the length of his residuum. In the Claimant’s favour on all these issues was (a) his work ethic since injury (he carried on working even in hospital), such that no failure to mitigate could be alleged; (b) the fact that he had immediately commissioned and paid for adaptation works; and (c) the fact that he had trialled and ordered all of the prosthetics for which he was claiming. Critically, although unusual, the Claimant’s prosthetics expert fully supported ongoing provision of all 7 devices.
Settlement
The parties were able to agree a settlement figure of £4.81 million at a JSM conducted immediately prior to issue that reflected a compromise on his likely retirement age (given his stated pre-accident intentions), but full recovery of his accommodation claim and all 7 prosthetics. This reflected his clear and evidenced desire to maintain involvement in multiple sports for the foreseeable future. There was recognition on both sides of the exceptionality of his lifestyle and rehabilitation.
Lessons Learned The case illustrates the merits of ‘front-loading’ the work of gathering and perfecting expert evidence once the acute period of rehabilitation has passed; and the need to ensure, if feasible, that sufficient monies are received to enable trials of prosthetics and swift property adaptation or purchase prior to any JSM or trial. In this case, such an approach facilitated settlement of a high-value claim on an unusually abbreviated timeline, with less than 2.5 years separating accident and settlement. Had the claim not settled, this approach would also have facilitated an accelerated trial or, if necessary, Early Neutral Evaluation to catalyse subsequent settlement. Moreover, by releasing funds at an early stage, the insurer both engendered goodwill from the Claimant at the JSM and enabled him to have a clearer idea of his true current and future needs as a result of his amputation. This again reinforces the benefits to all sides of a collegiate approach in cases of serious injury
