M*** McF****NE
and
CLIFFORD SMITH & BUCHANAN (Solicitors)

Mr M*** McF****ne was born on 29th July 1970 and so was 17 at the date of the accident on 2nd April 1998. He was 29 at the date of assessment before District Judge Holloway on 22nd September 1999.

The Claimant was a passenger in a car which hit a wall, and so he had an unanswerable case on liability. However, because his medical condition took many years to settle, his claim would not have come to trial on quantum until about 1999. His then solicitors advised him, in 1992, to accept a payment into Court of £10,655.00, which he did, that being 1.5% of his true claim. He sued those solicitors, and the assessment was theoretically against them, although it proceeded as the assessment would against the original driver.

The Claimant sustained multiple severe injuries to his left leg, foot and ankle, requiring a number of operations over many years, and leading to a below-knee amputation in November 1995, which had to be revised 13 months later. Despite that very difficult medical history, the Claimant started work as a van driver in September 1997, and he obtained his LGV licence not long afterwards.

Loss of Earnings

The District Judge (who is the President of the District Judges' Association) found that the Claimant would only be able to continue driving heavy goods vehicles until the age of 49 or so, and that he would have significant absences from work. Even though the Claimant is now earning, the District Judge found that there was a partial future loss of earnings until the age of 49. Osteo-arthritis is likely to develop, making employment generally more difficult, but nevertheless the Judge said that he did not see the Claimant as being permanently unemployed after the age of 50, although he would certainly earn far less than he does now.

Bungalow

It was disputed that the Claimant needs a bungalow, part of the argument being that, once he is fitted with Dorset Orthopaedic Limbs, his mobility would improve substantially. Various different experts supported the need for a bungalow, and the Judge found that the medical evidence was entirely supportive.

Dorset Orthopaedic Limbs

It was the Claimant's case that he would obtain limbs from Dorset Orthopaedic. The Judge concluded that the real advantages of such limbs were that a lot of time could be spent by the prosthetist in making sure of a good fit, they look better, and, in this case, there would be a better foot absorbing vertical forces. The Judge said that the cost of such limbs was, in his view, disproportionate to the benefit, but nevertheless awarded the sum claimed.

Pain, suffering and loss of amenity

The Judge awarded £55,000.00, which is at the top end of the JSB Guidelines, and added that, having spent a lot of the past 40 years in personal injury litigation, in all capacities, he felt that a 50% increase was long overdue. This, of course, was a reference to the Law Commission recommendations.

The figures were as follows:-

Notes for practitioners:

1. The District Judge commented that Doctor Ernest Van Ross, the Claimant's lead consultant, was an impressive expert witness, and I agree. In my opinion, he demonstrated real expertise coupled with independence and neutrality.

2. There was a payment into Court on the evening before trial of about £400,000, and an offer on the morning of trial of £450,000.

3. One of the arguments put forward by the Defendants was that there had never been an award of more than about £400,000 for a below knee amputation, and it was emphasised (mischievously?) that Kemp & Kemp does not include a report of any such awards. As it happens, I obtained an award of about £800,000 for similar injuries in about 1997.

BILL BRAITHWAITE Q.C., is the Consultant Editor of Kemp & Kemp, and practises from Liverpool and London. He led James Rowley. They were instructed by Andrew Kirkpatrick of Hough, Halton and Soal, Carlisle.

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