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Law Bulletin - April 2006

Damages

Trial Judge’s conclusions upheld

The claimant injured her neck and back when a car in which she was the front seat passenger was struck by the defendant. She was admitted to hospital and subsequently had physiotherapy for neck and back pain. Before the accident she had medical treatment for sciatica.

Over two years later an orthopaedic surgeon prepared a medical report and said that she was suffering from cervical whiplash and a troublesome lower back. This report was compiled after she had given birth to her second child, and was made without the benefit of full access to medical records.

In cross-examination the surgeon conceded the injuries should have resolved themselves to a tolerable level within a short period and that the outlook was consistent with ordinary recovery, and subsequent physical deterioration could not be explained in orthopaedic terms.

The claimant contended that the Judge failed to have proper regard to the surgeon’s initial report. The defendant said that as a result of the cross examination the surgeon had materially changed her position from the initial report and the judge’s decision accurately reflected the position at the end of the trial. The Judge held that the injuries were soft tissue injuries that had resolved within 15 months of the date of the accident.

The Court of Appeal held that the trial Judge was entitled to have regard to all the material before him at trial and on the evidence his conclusion that the injuries sustained in the RTA were soft tissue injuries but were resolved within 15 months was correct. So the Court of Appeal is most unlikely to interfere in a Judge’s findings unless it is clear that they are contrary to the evidence.

Jolghazi -v- Ali. Court of Appeal, 20 March 2006.

Good award for Smith and gardening costs

The claimant was involved in an RTA having suffered a soft tissue injury to the right elbow, the effects of which were permanent. The evidence was that the claimant could continue at his job as a pest control officer but would be at a disadvantage on the open labour market as he could no longer do heavy manual handling. He also had difficulty carrying out gardening.

In respect of the labour market, the evidence was that the claimant was at no real disadvantage in doing his present job, but the judge still awarded £5,000. In respect of gardening, the claimant was not allowed to rely on supplementary evidence in support of the claim but the claimant brought photographs of the garden to court, and the Judge awarded £5,000 for ongoing heavy gardening costs, even though the medical evidence only supported difficulty in heavier aspects of gardening. General damages had been agreed.

Guest -v- Staniland. Coventry County Court, 3 March 2006.

Money laundering in personal injury actions: Do we have a problem?

Solicitors have a duty to report if they suspect that a party has use or control of property that may be the proceeds of crime. William McCormick of Ely Place Chambers recently presented a seminar on how this might affect personal injury actions.

In summary, counsel’s opinion is that the issue does not arise in any case where the defendant is insured. In the very small number of cases where we are pursuing a defendant who does not have commercial insurance, we would not be caught by the regulations in any case that proceeded through the ordinary course of litigation, even if we suspected that the uninsured defendant was going to pay damages or costs from monies that had been obtained through the proceeds of crime. Only if the entire litigation was a sham to launder money would the regulations bite.