Published: 15 January 2018
Avoid an under-settled personal injury claim
We are often asked to advise clients where personal injury or medical negligence claims have been under-settled ie the settlement value achieved is substantially below what the claim was worth.
Below we outline a real life example of someone who was badly advised by a solicitor in connection with the settlement of a personal injury claim, and how a claim in negligence can seek to recover some of the consequent shortfall in the compensation received.
In an on-going case, our client “Miss W” had previously instructed a firm of solicitors “Firm X” to assist with a personal injury claim following carbon monoxide poisoning after a faulty flue installation in her council owned flat. The compensation sought included a loss of earnings claim as the poisoning had seriously affected Miss W’s ability to earn a living, and indeed she was absent from work between 2010 and 2015. Firm X had advised Miss W that they believed the payment of compensation of £60,000 would be a reasonable recovery in the claim.
In September 2013 the council made a £20,000 settlement offer to Miss W as they didn’t believe the evidence supported the loss of earnings claim. Unsatisfied with the offer, Firm X advised the council Miss W would accept a £70,000 settlement. It is worth noting at this point that Firm X failed to respond to the points raised regarding the lack of any evidential basis for the loss of earnings claim.
Eight days before the trial Firm X advised Miss W that an improved offer of £35,000 made by the council ought to be accepted. Understandably Miss W was not satisfied with this advice and questioned why her solicitors were advising that if the claim proceeded to trial, it might fail.
Three days before the trial Miss W instructed Firm X to seek advice from a barrister. The barrister advised that the claim was not guaranteed to succeed as the evidence prepared by Firm X was ‘inadequate’. Miss W needed to be able to prove on the balance of probabilities that she had been poisoned by carbon monoxide, that this was due to the negligence of the council, and that the poisoning had caused the symptoms complained of – which was not possible on the evidence prepared by her solicitors..
In addition, the barrister noted that even if liability could be established no schedule of loss had ever been finalised (ie a document setting out how much you want the tribunal to award you if you win your claim). The claim sought damages limited to £50,000. A draft schedule had been prepared which identified loss of earnings up to September 2013 of £60,000 but did not include a claim for future loss of earnings. Having considered the evidence obtained, the barrister took the view that there was a ‘significant’ risk that no loss of earnings would be awarded.
As a result the barrister concluded that on the poor case preparation meant that the Council’s offer ought to be accepted. However the barrister recommended that Miss W ought to obtain independent legal advice as there was ‘reason to believe that Miss W had been negligently advised’.
Independent legal advice
We were asked to provide independent advice to Miss W.. After reviewing the case in detail, we requested a psychiatric assessment for Miss W. The report confirmed that the carbon monoxide exposure between 2006 and 2008 had caused Miss W to decompensate – leading to tiredness, poor motivation and depression and the development of a mixed anxiety and depressive disorder. The report stated that there had been a partial improvement with treatment but not a complete improvement.
The expert recommended a graded return to work but, importantly, concluded that the carbon monoxide exposure had led to a permanent brain injury. The evidence also suggested that Miss W would only be able to work at a level substantially below the level she would have reached but for the brain injury.
Had Firm X obtained psychiatric evidence Miss W’s claim for both past and future loss of earnings could have been properly investigated and claimed within the original proceedings. As it was not Miss W’s claim was settled for substantially less than its true value.
Miss W is now bringing a claim against Firm X. If the Court finds Firm X was negligent it will assess the damages she is entitled to recover from her former solicitors on a loss of chance basis. This claim will involve looking at the maximum value of the claim she had in the original proceedings and then applying a percentage discount to reflect the risk that that sum might still not have been recovered. If the negligence claim against Firm X succeeds, Miss W says that properly advised her claim against the Council was worth in the region of £600,000. Even a recovery of 50% of this sum in the present negligence action will represent in a very significant award of compensation which will be much closer to the damages Miss W would have probably recovered in the personal injury claim had she been properly advised.
What does this mean?
It is important that clients make sure that their claims for compensation in personal injury claims are properly thought about and explained to their solicitor and then supported by all necessary factual and expert evidence. Loss of earnings claim in particular need supportive medical reports, and when the illness or injury is not physical this needs to be from a consultant psychiatrist.
If at the end of the case there is any reason to believe that the solicitor has not done his or her job properly, or the compensation recovered is less than you were led to believe, we would be happy to review the case to see if the bad advice is sufficient to give rise to a claim in negligence that it is commercially sensible to pursue.