CASE REPORT
I have just finished one of the worst-defended cases I have ever seen.
I represented a woman of 48 who lost both legs, one arm and her husband in a car crash caused by the dangerous driving of an off-duty police officer (he got four years' imprisonment). She was discharged from hospital into her own home, which had eight steps up to the front door, and was on five floors: not surprisingly she couldn't manage, even with the help of her two children aged eleven and thirteen, and a young female family friend, and so the local authority re-housed her in a guest house where she had to eat all her meals in the public bar (with no legs and only one hand). That was too expensive, and so she was sent to a difficult housing estate where the whole family was unhappy, and she could not access the bathroom.
You might think that this sequence of events would arouse the sympathy of any insurer, but Pegasus Motor Policies at Lloyds, the insurers responsible, took an entirely different view. They would not admit liability (the Defendant blamed the driver he was overtaking when he crashed head-on [on the wrong side of the road] into Mrs Westmoquette's car), and they did nothing to help the Plaintiff in her plight.
I wonder if any of you have wondered how to get summary judgment and an interim payment when you cannot get the police report? The Plaintiff had no recollection of the accident, and therefore all we knew was the location of the accident. It really isn't easy, and the temptation is enormous to tell the client that she must wait until the Defendant has been prosecuted - after all, that is what usually happens.
After such a catastrophe, Mrs Westmoquette's first stroke of luck came in her choice of solicitor. I don't know how she managed it, but she chose a highly specialised personal injury solicitor with real experience and, above all, humanity and compassion - Tony Goff of George Ide, Phillips in Chichester. He would not tolerate an eighteen month wait while the Defendant was prosecuted and the police report became available, and so he ferreted round until he got enough information to demonstrate that there was no defence to a civil claim (and none to the criminal charge either!). The defence resisted our application vigorously, but we were awarded an interim payment of £100,000 so that the Plaintiff could buy a bungalow, the Master making it clear that he intended to award a further sum for adaptations when necessary. The defence offered no help in the selection of a suitable bungalow, even though the process of viewing was almost impossible for the Plaintiff. They gave us a second substantial payment, but resisted our application for a third, which was necessary to finish the work to the bungalow.
Whilst this skirmishing was going on, Mrs Westmoquette's solicitor was preparing the case for trial, tolerating no delay from the defence, and we were listed for a five day hearing (on quantum only - liability was admitted when the Defendant got four years) in March 1998. The defence paid £910,000 into court three weeks before trial (leaving it until the very last moment), and then opened negotiations in the week before. Their position, clearly stated without apparent embarrassment, was that they would offer a structured settlement to the Plaintiff if we could agree damages, but surprisingly if we went to trial they would not allow the Plaintiff to have a structure. At 9.15 a.m. on the day before trial they offered £1,050,000, telling us that the offer would be withdrawn if not accepted by 4.30 pm that day. I haven't mentioned yet that the Plaintiff also suffered extensive burns, terrible facial injuries leaving awful scarring, damage to her jaw, and some brain damage. The pressures on her and her family were so terrible that the friend who was helping to look after them had earlier attempted suicide. Thankfully, Mrs Westmoquette is a person of enormous courage, strength and determination, and she was able to withstand the pressure, and face the prospect of having to spend all week in London having every aspect of her claim scrutinised by a team which apparently was lacking in compassion and perception.
She knew by then that she was in for a grilling, because none of our significant experts were agreed, nor were any of our figures.
So we came to trial. The first problem was that Mrs Westmoquette could not get into the bathroom in her specially-selected, wheelchair-friendly hotel: they had to take off the door and the frame, which took five hours. The next difficulty was that all the conference rooms in the court building were "booked", and so we had to cram into the first aid room.
We had a first class team of experts, all of whom, I believe, are independent, impartial, and truly expert: Dr Saadah (consultant in rehabilitation following amputation, and the treating doctor) Hugh Spencely (architect), Maggie Sargent (nurse), Julia Ho (occupational therapist), and Neil Brooks (neuro-psychologist) were the main ones. On the other hand, the defence surveyor was very critical of the selection of the bungalow, and the design of the adaptations, and he asserted that the finished job could and should have been done for at least £100,000 less than the actual cost. However, under cross-examination he admitted that the purchase and adaptation of the bungalow had been done "on the best advice (Hugh Spencely's) and in the best way possible". Similarly, the defence occupational therapist completely changed her assessment of the Plaintiff's equipment needs, and completely altered the care package originally suggested by her.
The total award was just over £1,500,000.
It was ironic and deeply disappointing that, only the week before this trial, I had written an article suggesting that decent, specialist personal injury practitioners for plaintiffs and defendants probably could manage these catastrophic cases without the courts, because we could and should be able to resolve most of the issues. What an awful reminder for me of just how badly these cases can be managed. Two highlights give some of the flavour of what the Plaintiff had to tolerate: first, it was suggested to her that, to offset against increased clothing costs, she would no longer have to buy tights; secondly, we spent some time listening to the suggestion that, if she wanted to change her shoes (for example, from indoor to outdoor, or morning to evening), she should take her legs off rather than incur the expense of a long-handled shoe horn costing £5.89 (remember that she has only one hand, and the legs are difficult to put on and take off).
Although the end result was wonderful, and although it cost Pegasus a huge amount compared to the cost of an early, sympathetic settlement, and although I have been up-lifted by contact with Margaret Westmoquette, the experience had a profoundly dispiriting side for me. How can we possibly hope to improve our system of managing substantial personal injury claims whilst this approach is tolerated?
The trial was heard by Mr Justice Hooper in the High Court in London, and he gave judgment in March 1998. The figures were:
| Pain, suffering and loss of amenity: | £115,000 |
| Interest on PSLA: | £4,326 |
| Past loss of earnings: | £36,598 |
| Past care: | £17,925 |
| Past Equipment: | £20,512 |
| Past motoring expenses: | £3,141 |
| Past therapies: | £70.00 |
| Past housing: | £120,996 |
| Past travel: | £4,890 |
| Total past losses inclusive of interest: | £222,628 |
| Future loss of earnings: | £106,650 |
| Future care: | £351,950 |
| Future aids: | £186,078 |
| Future motoring expenses: | £119,660 |
| Future therapies: | £191,444 |
| Future housing: | £41,510 |
| Future technical aids: | £122,530 |
| Future pension: | £11,479 |
| Future Financial advice: | £64,504 |
| TOTAL | £1,537,759 |
NOTE: This award was increased to about £1.8 million to reflect the decision in Wells, Thomas and Page.
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