W L v MM

January 12, 2023

By Gerard Martin KC

Following a jsm in October 2022,within a few weeks thereof, a further and better offer was made by the insurer in this case, such that the case for this below knee amputee web designer, living in London, then aged 43 years and now aged 50 yrs, settled for £5.5 million gross of IPs and CRU.

The accident was in December 2015, liability was admitted, the client after struggling for a long time with his lower limb injuries had an elective amputation in October 2019. His rehabilitation was complex given he had a pre-existing skin condition (folliculitis) which made his socket wear problematic. In addition, post accident, and we alleged caused by the accident, his wife separated from him and at the time of settlement divorce proceedings were ongoing. The client had shared care of his children, now aged 17 and 12 yrs respectively, 26 weeks a year, both of whom had mental health issues, requiring more than usual care from their parents.

The Defendant argued for a life expectancy deduction of 5yrs discount off normal life expectancy, but their expert conceded in his own report that no data existed on civilian life expectancy for amputees, as the burden of proof was on the Defendant, we made no concession. My  general experience is that most rehab consultants advise LE is not affected by amputation.

The Defendant also argued that the marriage would never have lasted in any event as there had been pre accident difficulties in the relationship and therefore the costs of divorce would have been incurred. We pointed to the fact that the separation occurred 3 months after the elective amputation. We claimed the legal costs of the divorce and included them in our valuation.

The Defendants argued that now at the end of his rehabilitation, the client should not be considered “disabled” for DD Act purposes. We relied upon our orthopaedic expert Professor Saleh whose research suggested that a below knee amputee experiences a reduction in his ability to work of between 60-80% over his working life for reasons connected with his amputation. Common symptoms are back pain, phantom pain, pain in the residuum, and fatigue are daily issues. We advised there was sufficient evidence to satisfy the requirement of disability and we would win this point.

The future accommodation claim was substantial, we claimed just under £2 million, the insurer argued that the Claimant’s “ but for” scenario was that he was going to move to better and more costly accommodation in any event, an agreed fact, but we differed significantly on what that would have resulted in for the Swift v Carpenter calculation.

With regard to Future Prosthetics, the Claimant trialled the Empower foot and  ankle microprocessor powered prosthetic at circa £85k every 6 years . The point was taken against him that he was likely to be a better user of prosthetics than those recommended to use the Empower, namely low to moderate users. Given he had trialled other prosthetics and preferred the Empower as giving him most function and comfort, and his age, plus his skin condition, we thought we would win that issue.

We valued future loss of earnings at a little under £1 million and put a similar figure on future prosthetics.

Our client was going to make a very good witness and one a judge would take to, this was an important factor in our approach to valuation.

Gerard Martin KC instructed by Richard Edwards, partner of Potter Rees Dolan solicitors, a Hugh James business.