The Role of Collaboration in Serious Injury Litigation

Accident Circumstances

The Claimant was living in London and was travelling to Middlesbrough as a front seat passenger in a car which became involved in a collision with a stationary vehicle. There were issues of contributory negligence although the reasons why are not relevant to what the authors seek to achieve in this article.

As a result of the accident, the Claimant sustained serious spinal injuries, ultimately causing incomplete paraplegia.

Irwin Mitchell were instructed by the Claimant. Clyde & Co were instructed by AXA Insurance, on the defendant’s behalf. Following notification of the claim, the parties agreed to run the case in accordance with the Serious Injury Guide.

Rehabilitation

After the accident, the Claimant was hospitalised for 11 weeks. He was readmitted to the spinal injuries unit in Middlesbrough 3 months later for a 3-week period of top-up rehabilitation. However, other than this, he received very little post-discharge input from the NHS.

One of the principal aims of the Serious Injury Guide is that where beneficial, a Claimant should be provided early access to rehabilitation to maximise their recovery. With that in mind, the parties jointly instructed a case manager to carry out an initial needs assessment, which took place 7 months after the accident.

At the time of the assessment, the Claimant was only able to walk 10-15 steps with difficulty, using callipers and crutches. He struggled to stand from his wheelchair.

His living situation was also less than ideal. When discharged from the hospital, he initially moved into his mother's house in Sunderland. As his intention was always to return to London where he has other family, he then moved to Luton to live with his brother. However, space in both houses was very limited and at his mother’s home, he could only access upstairs via a temporary stairlift.

Given the Claimant’s needs and following the initial needs assessment, AXA Insurance agreed to fund:

• His move to a single-level flat in London in an area close to his friends and family, which required little adaptation.
• An intensive programme of rehabilitation involving 2 physiotherapy sessions per week, twice a week aquatic therapy, the use of electrical stimulation at home and the use of static bicycle once a week for 20 minutes.
• A range of aids and equipment.
• A care package

As a result of these and further subsequent interventions plus his hard work, the Claimant’s mobility significantly improved. Whilst his spinal injuries are permanent, he is now able to walk up to 20 minutes and navigate stairs with the aid of an orthotic and a hiking pole.

As contributory negligence was an issue, the joint instruction of the case manager worked well for the Claimant as it enabled rehabilitation to be funded on a 100% basis under the Rehabilitation Code. This meant that the Claimant did not have to worry about only recovering part of his therapy costs at the conclusion of the claim. He could therefore focus on maximising his recovery and ultimately, he was able to achieve a good level of independence.

Multi-disciplinary meetings

The Serious Injury Guide encourages the parties’ solicitors to attend periodic meetings with the case manager.

In this case, the legal teams and AXA Insurance attended multi-disciplinary team meetings every 3 months where we received updates on the Claimant’s progress. His case manager and the therapists explained what was being achieved in the sessions, what the goals were and what further interventions were being proposed. The meetings were an appropriate forum for the legal teams and AXA Insurance to ask questions about the rehabilitation.

This access and level of transparency was extremely valuable from a Defendant’s perspective in allowing AXA Insurance to understand what was going on and approve funding. For example, although funding for agency care was initially approved, finding the right candidate proved difficult. As one of the Claimant’s brothers had been providing care on an informal basis in the meantime anyway, it was eventually decided that he would be directly recruited. Usually, defendants are wary of family members being recruited to act as carers. However, through the multi-disciplinary team meetings, AXA Insurance were aware of the efforts which the case manager had made to recruit external candidates and the difficulties encountered. Therefore, funding for the Claimant’s brother to be recruited was approved and this ended up being a successful short-term arrangement.

Whilst not appropriate on every catastrophic injury case, the Claimant attended several of the multi-disciplinary meetings. He was able to share his views on the rehabilitation package and provide an insight into his condition. He described issues he was struggling with but also what was going well. Therefore, AXA were able to gain a first-hand understanding of the Claimant’s successes and concerns. As such, when his rehabilitation entered the maintenance phase and he expressed a desire to have a new therapy plan, which consisted of going to the gym and the introduction of a personal trainer, AXA Insurance were in a position to agree funding for this.

Route map meetings and the road to settlement

The parties’ solicitors and AXA Insurance also attended regular route map meetings every 3 months to discuss the steps required to progress the case and to drive it towards settlement. These worked successfully because the parties adopted a cards on the table approach and were open about any issues which arose.

For example, in one of the first meetings, Clyde & Co confirmed the defendant will not put forward an argument that the Claimant’s rental flat would be suitable for the rest of his life but sought clarification on what his long-term plans might be. Irwin Mitchell were unable to say with any certainty at that point and explained this was because it was unclear how much of a recovery the Claimant would make and this would ultimately have an impact on the accommodation claim. As the Claimant’s mobility improved with rehabilitation, his permanent accommodation needs became more apparent. Nevertheless, as the flat was working well in the short-term, the parties discussed and agreed on the lease being extended a little beyond the JSM date to remove a worry for him.

Even on issues where there was a dispute, the parties were able to find a way forward in the route map meetings. For example, potential arguments over contributory negligence had been raised but the defendant needed some time to finalise its evidence. Rather than let this discrete issue derail the progress which the parties were making, it was agreed that it would be left for determination at the JSM.

Ultimately, the route map meetings were a useful forum to discuss all aspects of the claim such as the progress being made with liability investigations, further interventions which might need to be explored in respect of the Claimant’s rehabilitation, what medicolegal examinations were required, when these should take place and what the timetable towards the JSM should be. The lesson here is the regular meetings allowed the parties solicitors to have sensible discussions on a face-to-face basis (albeit remotely), understand each other’s views and come to pragmatic solutions, even over issues where there might not be agreement yet.

The parties were keen to reach settlement as soon possible and an early JSM date was set. In our joint experience, having a date to work towards helps focus the parties minds, even if, with the benefit of hindsight, it ended up being a little optimistic. In the Claimant’s case, the parties’ expert evidence could not be finalised within the timescales originally envisaged and this meant the JSM had to be delayed by several months. However, due to the trust which the legal teams had built up through their open dialogue during the course of the claim, no difficulties were caused by the postponement of settlement negotiations.

Conclusion

The case was settled at the JSM for a significant but fair sum which met the Claimant’s current and future needs and allowed him to move on with his life. The issue of contributory negligence was also resolved.

This case demonstrates that through collaborative working, we can avoid situations which cause delay or the parties becoming unnecessarily entrenched in their positions. Through openness, regular communication and a willingness to be sensible about potential barriers to progress, both sides benefitted greatly from running the Claimant’s case in accordance with the Serious Injury Guide.