Clinical Negligence & Personal Injury Newsletter: December 2020

Introduction

Welcome to the December 2020 newsletter of Hardwicke’s Personal Injury and Clinical Negligence team, edited by Emma Woods.

For all things Covid-19 related, Hardwicke’s Covid-19 resources related hub can be found here. On the topic of the pandemic, with the increase in the number of people walking and cycling, Jasmine Murphy considers vulnerable road users in the time of Covid-19.

Gemma Witherington has written an excellent article reminding us of the potential hefty price tag of failed fraud allegations.

With several interesting decisions recently, Nye Moloney takes you through XM v Leicestershire Partnership NHS Trust and Emma Woods looks at Lewis v Wandsworth London Borough Council.

Charles Bagot KC discusses Azam v University Hospital Birmingham NHS Foundation Trust where he acted for the successful Respondent/Claimant in an appeal concerning a discretionary extension to the limitation period.

Charles has also made us aware of some wonderful news as Helena Drage is too modest to do so. The QCs on the Grenfell Inquiry, Richard Millett QC and Kate Grange QC, are awarding Helena a red bag in recognition of her excellent work on the Inquiry. For those who are not aware of this tradition, the gift of a red bag, by a QC to a Junior they have led, is a rare honour for particularly outstanding work in a case. Well done Helena and we look forward to seeing a photo of the ceremony when the bag is formally presented!

We hope you enjoy this newsletter and please feel free to contact any member of the team or the practice management team if we can assist further. We hope you have a Merry Christmas and best wishes for the New Year.

Emma Woods – Editor

Activity Report

Charles Bagot KC

Charles represented the successful Respondent/Claimant in an appeal concerning a discretionary extension to the limitation period under s.33 of the Limitation Act 1980, where the claim was issued 18 years after the expiry of the primary limitation period and the allegedly negligent surgeon had died in the meantime. See his article about the case featured in this newsletter (and first published by LexisPSL).

If your work includes mesothelioma cases, you may be interested to know that the first appeal to the Upper Tribunal concerning the Diffuse Mesothelioma Payment Scheme, in which Charles Bagot QC acted pro bono for the widower of a young mesothelioma victim via the Free Representation Unit, which clarifies some key principles in relation to the scheme, is now reported in the Weekly Law Reports at: DP v TopMark Claims Management Ltd [2020] 1 WLR 3591 (UT). A link to the Law Report can be found here. Charles’ article from earlier in the year on the appeal is here.

Charles continues to represent NHS Resolution, Insurers and Claimants in some of the largest and most complex injury and clinical negligence claims. Charles has been assisting with the clarification of the expert evidence for insurers where a Claimant was pursuing a 7-figure claim contending that a minor RTA was the cause of a catastrophic stroke she suffered about 30 minutes later. Following exchange of expert evidence and a joint meeting, the Claimant accepted an offer of just £10,000.

Charles Bagot QC and Helena Drage continue to represent a major Hollywood star against whom a former employee is bringing a claim alleging liability for a serious arm injury sustained in a boating accident, at the Bahamian resort owned by the star.

Charles has also been sitting as a Deputy QB Master on range of procedural hearings in large PI, Clinical Negligence and Abuse claims, as well as a Recorder in the County Court.

Colm Nugent has been engaged in a number of interesting matters in the last month:

RA – Brain injury case involving man taken off his bicycle and sustaining a head injury. Suffers loss of higher-end function in a successful entrepreneur resulting in loss of his consultancy business. The issue is to what extent loss of some function in a very high performing individual sounds in damages.

BA – final settlement of brain injury case which has been running for about five years and in which one aspect of C’s injury was that he was adamant he was entirely fine and the whole claim was pointless.

MH – settlement just before trial of lady who lost her finger as a result of an (allegedly) defective fire door at work which removed part of her finger when she was exiting the room. Expert evidence was unable to agree the extent to which British Standards and regulations applied to door closing mechanism.

IA – client had been recommended to accept a £30,000 offer for a long-term shoulder injury at his work in a cash & carry. He had offered to accept £55,000 in a P36 offer. Colm was then instructed and within three months the case had settled for a substantial six-figure sum.

Colm’s cross-over expertise between personal injury/health and safety and landlord and tenant matters (he has been involved in a number of reported cases concerning the Defective Premises Act) led to his recently being instructed in a novel matter, LvT – in which he was instructed to advise on Covid 19 compliance and whether a failure to adhere to the guidance could result a repudiatory breach of the lease/licence agreement.

Jasmine Murphy continues to be instructed in several Montreal Convention claims where injury has arisen in a variety of ways which are alleged to be Convention “accidents” on aircraft and at airports. She has been busy with Joint Settlement Meetings in high value cases including where a dominant wrist fracture led to chronic pain.  

Henry Slack has been involved in some interesting matters. He represented Defendant Insurer in Cotgrave v DTZ Management at a JSM where he settled the claim pleaded at just over £1 million for £285,000. Instructing solicitor was Eversheds Sutherland. He also represented the respondent insurer in Brown v AXA Insurance Ltd in an appeal to HHJ Simpkiss following a fast track RTA trial in November 2019. The appeal was dismissed.

Gemma Witherington has been instructed by a number of insurers this month and has been advising on policies and matters of coverage. She is also advising on costs recovery following a trial in the Bahamas (sadly she did not get to fly over there for “research purposes”).

She continues to act for a range of clients in respect of EL and PL matters. She appeared in the High Court on an interim application in a complex and high value secondary victim claim, ahead of the trial listed in spring next year. She has also appeared for the successful Claimant in a multi-party road traffic accident claim, via CVP.

Gemma has been sitting as a Deputy District Judge and Civil Recorder.  Her focus for the rest of the year is trying to hide Christmas presents from her inquisitive son!

Nye Moloney has settled a long running clinical negligence claim arising out of negligent knee replacement surgery for a six-figure sum on behalf of the claimant.  He has also settled a consent claim concerning spinal surgery performed on a child.  He has recently been instructed in a number of claims arising out of delays in referral and diagnosis, and a claim concerning an ambulance crew’s failure to transfer a head injury patient to hospital. He delivered a well-attended webinar on claims arising from delays in diagnosing cancer.  On the personal injury side, Nye successfully defended a multi-track trial concerning a 3 vehicle motorway accident. In another recent trial acting on behalf of a defendant, the claimant abandoned his claim at half-time following Nye’s cross examination of him. Nye has also been instructed in a high value claim arising out of a serious injury suffered in an HGV yard.

Helena Drage has had a busy month. She acted for the successful Defendant in the trial of the Claimant’s claim for injuries arising from a low velocity road traffic accident. The Defendant was successful in dismissing the claim and obtaining a finding of the Claimant’s fundamental dishonesty on the basis that the accident was not of sufficient force for the Claimant to have sustained any injury.

She also acted for the successful Defendant in the trial of the Claimant’s claim for injuries alleged to have arisen as a result of the Defendant driver’s alleged assault and battery of the Claimant whilst the Claimant was a passenger on the Defendant’s bus. The Judge found that the Defendant’s driver acted at all times in self-defence and, in any event, the Claimant had not proven his case on causation.

Helena settled pleadings on behalf of the Claimant in a claim against a Defendant pharmacy. The claim arises from the Defendant’s alleged inadvertent cessation of the Claimant’s repeat prescription medication.

She also settled pleadings (as Junior counsel) on behalf of the Claimant in a claim for severe orthopaedic and brain injuries arising from a road traffic accident.

Helena advised the Claimant on the merits of a claim arising from a Defendant NHS Trust’s alleged negligence during a surgical procedure resulting in iatrogenic injury.

She also advised the Claimant on the merits of a claim arising from negligent dental treatment.

Emma Woods has been very busy since joining the Clinical Negligence/Personal Injury team in October.  She has been instructed in several claims arising out of road traffic accidents. She has advised on the prospects of a finding of fundamental dishonesty, and also advised on quantum where the Claimant had sustained a wrist fracture.

Vulnerable road users in the time of Covid-19

With more people cycling and walking more as a result of the pandemic, Jasmine Murphy looks at vulnerable road users in the time of Covid-19.

Click here to read the article.

Don’t forget about the price tag…

With increasing numbers of people alleging fraud, Gemma Witherington considers the potential costs consequences of fraud allegations failing at trial.

Click here to read the article.

No duty to warn a cricket match was taking place

Emma Woods looks at the recent decision of Lewis v Wandsworth London Borough Council. A claim against a local authority for injuries sustained by a passer-by when they were struck by a cricket ball whilst walking through a public park was dismissed on appeal.

Click here to read our case report.

What is the standard of care of a health visitor?

This was the question that Stewart J had to resolve in XM v Leicestershire Partnership NHS Trust [2020] EWHC 3102 (QB).

Click here to read the case report by Nye Moloney.

Are your limitation arguments appealing? (Azam v University Hospital Birmingham NHS Foundation Trust)

In this interesting appeal decision, the court was weighing up the extent to which a discretionary decision under section 33 of the Limitation Act 1980 (LA 1980) to allow a clinical negligence claim to proceed 18 years out of time was open to challenge on appeal. Was the fact that the allegedly negligent surgeon had died since the expiry of the primary limitation period, ‘the epitome of prejudice’ meaning the case should not have been allowed to proceed, as the appellant asserted? No, held Mr Justice Saini, as the appellant trust’s (the trust) failure to make good the assertion of prejudice by any expert or other evidence at the limitation trial meant that the trial judge had been entitled to find that there was no significant real prejudice in defending the claim by the passage of time. The appeal was dismissed.

Click here to read the article by Charles Bagot KC.

Events

Thank you to those attended our #Brews in 2020. The team covered the following topics:

• Relief from Sanctions
• Recent Developments in Fatal Accidents Claims
• Instruction and the use of Experts after Griffiths and in the Post-Covid Litigation Era

If you would like a copy of any of the Takeaway Cups from these sessions, please email events@gatehouselaw.co.uk. Watch this space for new topics and dates in the New Year!

“Chambers unrobed” - get to know us better!

Each month, a member of our team has to spin ‘the Wheel of Questions’ and answer the first three questions that come up. This month, Charles Bagot KC tries his luck with the wheel:

Name something you’ve done that made you feel extreme happiness?

Swimming with a pod of wild dolphins in the sea off New Zealand was up there on the exhilarating scale. They were so curious about humans and put my meagre swimming abilities totally in the shade.

What’s your guilty pleasure?

Oh, that’s easy: cheese. I love all types! Each year for the last few years my family has made me my very own cheese Advent Calendar which makes December the best month of the year.

What’s the best piece of advice you’ve ever been given?

Oddly, it was a barrister telling me, “don’t become a barrister”! Like all good advice, I didn’t take it. I think the person meant that if you could be put off from coming to the Bar (or the legal profession generally), you should be, as it’s hard to forge a career. I think it just made me more determined than ever, which was a good thing as I found it really difficult to find pupillage and tenancy. I was turned down for pupillage by Hardwicke, without an interview, only joining the set after eventually doing my training elsewhere!

Want to try for yourself? Click on the wheel below!

Contact Us

To find out more about our Clinical Negligence & Personal Injury Team and their work, visit the Clinical Negligence & Personal Injury page on our website. To view a copy of our privacy statement, please click here.

If you do not already receive our mailings and would like to do so, please sign up here.