We advised our client on a personal injury claim arising from a road traffic accident in October 2009. Our client was knocked over by a motorcycle as she was crossing a road in Halesowen, West Midlands.
As the motorcyclist was in breach of the terms of his insurance at the time of the incident, the claim was raised against AXA Insurance, as the Second Defendant. We secured an out of court settlement of $3,000,000 (US dollars) for our client.
Our client sustained catastrophic physical and cognitive injuries in the incident – a life-threatening brain injury and multiple, orthopaedic injuries – which mean she lacks the mental capacity to conduct the litigation herself. Her sister therefore acted as her “Litigation Friend”.
Her sister’s objective was to secure enough compensation to give our client financial security, promote her independence and improve her quality of life. She currently lives with family, does not work and is isolated from everyday life.
We secured compensation to enable her to move into her own home, close to her family, and to set up a specialist care and therapy package. This will over time increase her independence and quality of life, whilst also reducing the care burden on her family.
There were numerous complicating factors in this case, namely: fully contested liability (with problems for primary liability, causation and contributory negligence); cross-jurisdictional issues; and lack of capacity to litigate.
The cross-jurisdictional issues were the most complicated and unusual aspects in the case. Our client lives in Pennsylvania, America, so the quantification of the majority of her compensation claim was based on the situation in America. This necessitated the instruction of three different American experts: a US Guardianship Law Expert, a US Care Expert and a US Tax and Finance Expert.
We also obtained expert evidence from a Care Expert in America regarding the system and costs of privately paid care in America, which we claimed for the rest of our client’s life so that she does not have to rely on Federal or State provision.
Issue 1 – Our client’s capacity to manage her finances in America.
Solution 1 – We sought advice from an American lawyer, which enabled us to apply the capacity test under Pennsylvania law, relevant to our client. We were also able to calculate and claim the costs of future Guardianship protection and US Special Needs Trust protection, which are equivalent to the Court of Protection provisions in the UK.
Issue 2 – Practical working of a Periodical Payments Order (PPO) made in the English courts and paid in America.
Solution 2 – We investigated the form a PPO could take, the American economic index the PPO annual payment could be linked to and security of the insurer.
Issue 3 – The very complicated system of Federal and State medical assistance (‘Obama Law’), care, therapy and welfare benefits provision in America compared to the UK.
Solution 3 – We investigated the US Statutory system, obtained expert evidence from a Care Expert in America and sought assistance from our client’s US Guardian (Court of Protection equivalent).
We calculated and claimed the lifetime cost of medical insurance in America as part of the claim and also researched how US Federal and State medical assistance and welfare benefits would be affected by a compensation award. This was alongside the possibility of using an American Special Needs Trust to protect the client’s eligibility for state benefits, and claiming the costs for the Trust in order to do so. We assisted our client’s US Guardian (Court of Protection equivalent) to make reports to the Federal and State authorities.
The client’s capacity to litigate also posed problems in this case. We maintained throughout that she lacked the mental capacity to litigate, which was supported by our expert, however, this was strongly contested by the Defendant and there was some conflicting evidence. This remained fully contested right up to the court Hearing for determination of the issue. There was a long wait between our Application to appoint a Litigation Friend and the court determination of the issue, during which we had to take a pragmatic approach to continue to progress the case whilst not breaching the Civil Procedure Rules relating to Protected Parties.
The issue of legal liability was fully and strenuously contested throughout this claim. We obtained accident reconstruction expert evidence on the issues of primary liability and contributory negligence and also obtained neurology expert evidence on the issue of causation.
During the course of the case it became necessary for us to obtain an increase to the indemnity level for the legal expenses insurance accompanying the Conditional Fee Agreement because of how heavily contested and protracted the case was, so as to protect our client.
Finally, due to the complex nature of the case we instructed 12 experts, which in turn posed numerous challenges.
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