PI Focus

The quarterly magazine from Exchange Chambers PI department

April 2012 Issue 9

Clinical negligence claims responsible for research to reduce major brain damage

Its simple, Simon

Privy Council upholds the Guernsey Court appeal in Simon v Helmot

A persons capacity to consent to sexual relations What advocacy means in the personal injury world Substantial awards for air crash victims

Clinical negligence claims responsible for research to reduce major brain damage
By Amanda Yip QC
Professor Solomon is Chair of the Professional Advisory Panel of the Encephalitis Society. For some years, he undertook some medico-legal reporting instructed both by claimants and by NHS Trusts in encephalitis cases involving alleged negligent treatment leading to severe brain damage. Appreciating the human and financial cost of such cases, he decided to seek funding for a major research programme aimed at reducing the impact of brain infections. Professor Solomons team have been able to secure funding totalling nearly 3 million. At first sight, this seems a large amount of money to invest in researching the treatment of a rare condition but it recognises that, for the number of people affected, the costs to the NHS and society are disproportionately large. If just one clinical negligence claim for catastrophic brain injury is averted, the costs will be easily recouped. Looked at in terms of a simple business case, the investment is small when weighed against the potential payback. Professor Solomons talk was very well received by an audience of claimant clinical negligence lawyers. It was genuinely inspiring to see how such positive steps had been taken to learn lessons from cases where things had gone wrong. Very often, families embark upon claims hoping to change the system and prevent other families going through the same suffering. Sadly, they are often disappointed, coming to realise that all a legal claim can offer is financial compensation. That is not to say that such compensation is not important. It makes a huge difference to quality of life and I firmly believe it is just that we as a society meet the cost of putting right (as far as we ever can) the damage done by medical negligence. It is just as important, if not more so, that lessons are learnt from claims and that steps are taken to prevent the same thing happening again. Of course, if more medics spot the need for change and like Professor Solomon do something about it, we clinical negligence lawyers will have our caseload cut. I can honestly say I would be delighted if that happens! It would produce a real saving to the NHS for all the right reasons. Society as a whole will benefit. That cannot be said about seeking to cut costs at the other end, once the damage has already been done, by squeezing catastrophically injured patients out of the compensation they so badly need.

Its simple, Simon

Privy Council upholds the Guernsey Court appeal in Simon v Helmot
Catastrophic injury specialist Will Waldron QC looks at the recent decision of the Privy Council
for another day, but an approach that has much to commend it in this class of litigation.) That all came to an end in August 2008, when proceedings were issued. The case was heard in the Royal Court of Guernsey in October and November 2009. Judgement was handed down in January 2010 when the Court rejected the Claimants contention that two separate discount rates should be applied to his future losses; rejected the contention that the appropriate rates to be applied were -1.5% and 0.5%; but accepted that a rate lower than the current rate in England and Wales (2.5%) should be adopted in order to ensure the Claimant received full and proper compensation. That rate, said the Royal Court, was 1%. The amount awarded was over 9.3 million. The Claimant appealed and in September 2010 the Court of Appeal of Guernsey acceded to the his submissions. The result was an increase in damages of 4.5 million. Unsurprisingly, the Defendant appealed to the Privy Council. It is clear from the decision of their Lordships and her Ladyship that a powerful factor in the Claimants favour was the nature and quality of the expert evidence upon which he had relied: Roland Hogg (Accountant); Roger Bootle (Economist); and Chris Daykin (Actuary). In particular, the economists evidence had been seen as critical and was unopposed. Obvious differences between Guernsey and the UK were identified. They were: (a) it is impossible to award a PPO in Guernsey; (b) inflation there is higher and tax lower; and (c) statistical information relating to the

Amanda Yip QC

The financial cost of clinical negligence claims is frequently in the headlines. Recent Government spin seeks to lay this firmly at the door of claimant lawyers. Attacks are made to legal aid although the Government knows full well that legal aid is an efficient and cost effective way of funding legitimate claims. The reality is that this is an attempt to cut back on claims being brought by deserving and vulnerable members of society who have been left with the devastating consequences of medical negligence. We must never forget what a valuable institution the NHS is. I am currently representing a catastrophically injured client who lives in the United States. We will have to build into his claim the private costs of medical care over his lifetime. In this country, we take it for granted that such care will be provided without charge. Nobody wants to see that institution being threatened by having to meet huge bills for compensation and costs. But there is an answer to this. Invest in measures to prevent people being damaged in the first place. Cut the number of people damaged and you cut the number of claims. During Brain Awareness Week, Exchange Chambers hosted a Clinical Negligence Seminar dealing with brain injury claims. One of our speakers, Professor Tom Solomon, consultant neurologist and Head of the Brain Infections Group at the Institute of Infection and Global Health, Liverpool University, gave us a particularly interesting insight into how medics might use experiences gained from medico-legal cases in a positive and pro-active way.

William Waldron QC

On the 7th March 2012, the Privy Council (Lords Hope, Brown, Clarke and Dyson and Lady Hale) upheld the decision of the Court of Appeal in Guernsey in the case of Dylan Simon v Manuel Helmot ((2012) UKPC 5), confirming that it is permissible to apply two distinct discount rates to multipliers for future losses to reflect differing inflation rates for earnings and non earnings related heads of damage at least in Guernsey! Those rates were respectively -1.5% and 0.5%. In that way, the requirement that the Claimant be awarded full compensation for his losses would be achieved so far as reasonably possible. Although the Court was quick to stress the very real differences between Guernsey and the United Kingdom, there is much of interest in the judgement. In my opinion, notwithstanding those differences, there is no reason why a similar approach should not be adopted here in order to achieve the same end an end that is not being met at present, to the disadvantage of Claimants. First, a brief recap of the circumstances. In November 1998, Manuel Helmot, then aged 28 was knocked from his bicycle by Dylan Simons car. He suffered catastrophic injuries, including brain damage. Interestingly, the parties agreed to indefinite prescription of the claim in order to see how things developed and, no doubt, in the hope settlement could be achieved (a topic

Manuel Helmot

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doubt that His Lordship intended his comment in the following paragraph to be used as a source of encouragement to Claimants lawyers to flock en masse to the courts armed with expert evidence from economists, actuaries and accountants, one might be forgiven for relying on it to support a move to do just that. The comment carries just as much force in respect of the level of the rate concerned as it does for adopting two separate rates to deal with different losses.
Lord Hope

His Lordship succinctly summarised at paragraph 49 of the judgement not only what lay behind the original decision, but very probably why it has not been altered since: He had consulted widely and he took account of the experience of the Court of Protection and, as Mr Daykin said in his evidence, of the consequences for the Ministry of Defence and the National Health Service (my emphasis.) It is true that the courts in England and Wales have not given any encouragement to the idea that they might be willing to take a fresh look at the issue. But that is because of the statutory context in which the determination was made. I pose this simple question: Why should the statutory context be a complete bar to the court revisiting the issue in England and Wales when the justice of the matter and the practical and factual economic circumstances behind the decision of the Privy Council are nigh on inseparable in both jurisdictions? Here, as in Guernsey, the common law requires a Claimant to receive full compensation and that requirement is not, and will not be met for so long as the current rate of return prevails. Looking at the question of applying different rates of return to different heads of future loss, at paragraph 52, he said: If the evidence shows that inflation will affect different heads of loss in different ways and that the differential is capable of being evaluated, the court should not close its mind to using different rates. To do that would risk giving the victim less than he is entitled to. The possibility of modifying the effect of tying future payments to the retail prices index was recognised by section 2(9) of the Damages Act 1996, as amended by section 100(1) of the Courts Act 2003. It was endorsed by the Court of Appeal in Flora v Wakom (Heathrow) Ltd [2007] 1 WLR 482, on the ground that there was no indication in that section that Parliament intended to depart from the principle that a victim of a tort was entitled to be compensated as nearly as possible in full for all pecuniary losses: para 29, per Brooke LJ. If that final sentence is right, how then could a Court now properly refuse the Claimant the right to call evidence on the subject in the face of the Ministers inaction? There is a mechanism for doing so and the Court must strive to do its duty and award full and just compensation to a Claimant. Although I

The decision of the House of Lords in Wells v Wells should not be seen as an indication that a single discount rate must always be adopted. It would be wrong to do that (my emphasis) if the evidence shows that, if that were to be done, a given head of loss would not be fully compensated. We all realise that the evidence, if called in England and Wales, would show just that . The only stumbling block to getting the issue before the Court is the historic reluctance to allow the rate set by the Minister to be challenged. But, to coin a phrase, that was then and this is a very different now. Turning to the objection that to apply a negative discount rate was counterintuitive to the exercise of using multipliers as a means of accounting for accelerated receipt, Lord Hope said: But, as I suggested earlier (see para 14, above), the use of the word discount is not an apt way of describing the exercise. It is, in essence, simply a process of adjustment. And in principle there can be no objection to its operating in the reverse direction if the evidence shows that an adjustment which increases the multiplier is needed to ensure that the lump sum will continue to be large enough to meet losses to be incurred in the future. Otherwise the effects of accelerated receipt, which are inevitable where the award is by means of a lump sum, will not be properly recognised (my emphasis again). I simply repeat what I said above. Perhaps the time has come to act. Lord Dyson added comments at paragraph 106 of the judgement, which are of note: It is important not to lose sight of the fundamental principle that a claimant is entitled to full compensation and that the duty on the court is to do its best, using all tools that are available to it, to achieve that end. Before the advent of the ILGS, the courts were unwilling to take account of expert evidence about future economic trends because (i) it was too uncertain, (ii) it would be likely to involve the use of contentious expert evidence which itself was undesirable, and (iii) inflation was sufficiently taken care of by assuming that lump sums would be prudently invested. The arrival of ILGS gave the courts a better and more precise way of taking inflation into account and the result was Wells. But as I have said, the solution propounded in Wells was not set

in stone pending a decision by the Lord Chancellor. It would require a "marked change in economic circumstances" before the debate could be reopened. The only way in which such a change in circumstances could be proved to a court would be by expert evidence, almost certainly from an economist. In other words, the House of Lords recognised that it might be possible to persuade a court that the principle of full compensation would be better satisfied by adopting a different discount rate from that adopted in Wells. The Privy Council in Simon was deciding the issue on the basis that it was perfectly permissible to obtain and present expert evidence dealing with the discount rate because economic circumstances made it appropriate, and the rate could not be set by statute. As I acknowledge, that latter point is a distinction between their situation and that in England and Wales. However, the House of Lords reached its decision on the discount rate in Wells pending resolution of the subject by the Lord Chancellor and because the situation was at that time patently unsatisfactory. In my opinion, the situation now reached is every bit as unsatisfactory, if not more so. There is a statutory power under section 1(1) of the Damages Act entitling the English and Welsh courts to allow the same debate here as was had in Guernsey. In all my recent and on-going cases, this topic looms large for the badly injured people I represent. Indeed, when I was engaged in February this year as a Consultant Expert in a significant Jersey personal injury claim, we used the impending decision in Simon to our advantage with no real opposition from the Defence Insurer. For my part, when Ken Clarke is proceeding with sloth like progress and apparently reluctant to grasp the nettle; when we are in the grip of the worst recession in the living memories of most of the population; and when the aim of full compensation cannot possibly be met in serious injury cases with a discount rate of 2.5%, even with PPOs in play; it is about time that the courts allowed Claimants proper access to justice on the most important of issues in their case even if the practical result would be to force the Ministers hand. However, I fear it might not be quite so simple as it was in Simon.

Royal Court of Guernsey

island is, to an extent, less reliable than that for the UK. One further distinction of note is that the rate of return cannot be set by statute in Guernsey. It is a matter for the Court, as used to be the position here before the Damages Act 1996 and, in particular, the setting of the current rate at 2.5% by the then Lord Chancellor in July 2001. Thus, post Damages Act cases had no bearing upon the decision in Simon. The Court was not troubled by the English Court of Appeal decision in Warriner ((2002 EWCA Civ 81)), in which it was said that unless a Claimant could show that his case had special features or fell within a category the Lord Chancellor (now Minister) had failed to consider when setting the rate, he would not be allowed to adduce expert evidence and contend for something different. For my part, I have no doubt that a failure to revisit the interest rate of return long after the economy has been hit by the worst recession since the 1930s gives catastrophic claims special features and takes them into a category the Lord Chancellor could not have considered when he set the bar at 2.5% in 2001; and Ken Clarke has failed to consider in abject fashion to date. The life expectation, health, peace of mind and dignity of those seriously injured through no fault of their own is dependent to a greater or lesser extent upon full, just and proper compensation being awarded to them by the Courts. In my opinion, much of what was said by the Privy Council on this topic carries real force when considering the current (unacceptable) position regarding the interest rate of return in England and Wales. That rate does not reflect the realities of the economic climate in which we find ourselves. For so long as the rate remains rooted to the 2.5% column of Ogden, Claimants lawyers and the Courts are

prevented from achieving justice. True it is that the Privy Council pointed out that PPOs are now a valuable tool in catastrophic injury claims in the UK, and can be used to mitigate the effects of future inflation but that cannot provide a complete answer to the worrying problem of under compensation faced by Claimants. In some cases, whether because of a finding of contributory fault or otherwise, a PPO is either not possible or inappropriate. In any event, some heads of future loss such as earnings and accommodation costs are by necessity usually awarded as a lump sum, reached via a multiplier based on a disadvantageous interest rate of return. The fact is that badly injured Claimants up and down the land are being undercompensated and will continue to be undercompensated until such time as the Minister for Justice addresses the issue or the Courts grasp the nettle and look at it themselves. I think it is worthwhile quoting verbatim from the leading judgement of Lord Hope. At paragraphs 21 and 22, when speaking of the original decision of the then Lord Chancellor in setting the rate, he said this: The Lord Chancellor said, in a statement of his reasons for that decision, that in determining the discount rate he had applied the appropriate legal principle as to the object of the award of damages laid down in Wells v Wells. Although the statute empowered him to fix different rates of return for different classes of case,he had decided upon a single rate to promote certainty and because it would be easy to apply in practice. It was not his intention to make frequent changes to take account of every shift in market conditions. He had regard to the principle laid down in Wells v Wells that the assumed rate of return should be based

on the yield of ILGS. He found that the average of the gross redemption yields of ILGS over a period of three years at an assumed rate of inflation of 3% was 2.46%. Discounting for tax payable in the hands of a UK taxpayer reduced this figure to 2.09%. Noting that the intervals used in the Ogden Tables for the calculation of the multiplier was 0.5%, he chose not to round his figure down to the nearest multiple which was 2% but to round it up to 2.5%. As the Court of Appeal noted in para 10 of its judgment, his only explanation for that decision was that he had taken account of matters which he considered were relevant to the setting of a discount rate which was just as between claimants as a group and defendants as a group. He made it clear in his statement that he did not accept that the rate of return on ILGS was a pure and undistorted measure of the real rate of return that markets would afford in relation to investments with minimal risk. He had had regard to the fact that the Court of Protection had continued, even in the light of Wells v Wells, to invest in multi-asset portfolios including an equity element although the House of Lords in Wells v Wells had chosen not to be guided by its practice. This indicated that there were sensible, low-yield investment strategies available to claimants which would enable them to achieve a rate of return at 2.5% or above without being unduly exposed to risk in the equity markets. He also said that he had taken account of the fact that it was likely that claimants would not be advised to invest solely in ILGS but rather in a mixed portfolio in which any risk would be managed so as to be very low. This view was supported by the experience of the Court of Protection and the response of the expert financial analysts whom he had consulted.

Lord Dyson

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Advocates advice
Bill Braithwaite QC takes a look at what advocacy means in the personal injury world
either as lead medico-legal expert, or as a clinical, advisory (Edwards-Tubb) one. I have found again and again that it can be important to direct attention away from the litigation and towards the treatment of the patient. That does not necessarily require an advocate, but one of our advantages is that, if we have made this field of work our lives, we will have extensive experience of how lawyers can help patients to seek and obtain treatment for their problems not just medical. A recent example for me was a man whom I first met nearly four years ago, when he had been paralysed for a year. He was still going through the recovery and adaptation process, and had not re-engaged with life. We encouraged the claimant to try to do whatever he felt was suitable in order to create a good quality of life in his new circumstances, and he gradually did just that. He bought a bungalow, started to arrange a good support package, and got out more. All of that gradually created a completely different state of mind, and a different approach to life, so that, when we had our settlement meeting, we knew moderately well where he wanted to go with the future. Sometimes the treatment is purely medical. A fairly common example for me is clients who suffer from dizziness following a catastrophic brain injury, or even a less severe type of injury. I first came across vestibular dysfunction several years ago, and it is easy to refer a patient to one of the acknowledged experts in this field, which can make a real difference to the client. An incidental advantage for the solicitor is that, if the client sees that his legal team is effective in helping him or her to get better, he or she may form a stronger and closer relationship with them. That is likely to be of real benefit throughout the case, particularly when important decisions need to be made. Turning to an area where the legal process may intrude, getting clients home from hospital involves various different elements. The choice of accommodation solution, particularly the realisation that imaginative solutions might be necessary, can take time and much exploration. Working round Eeles is not impossible, but it does require detailed preparation concentrating on evidence and advocacy. Interim payments are not easy to come by for accommodation, but they can still be obtained, sometimes without the need to apply to the court. So much depends on preparation and presentation. Settlement meetings are common nowadays, but how often is the claimants case ready to be presented to its sensible maximum? Not always, I would say. Much depends on the wider view of the claimants case; when will it be at its best and clearest? Negotiation is an art, and I have found that training in mediation is an advantage. What is seen less often, in my experience, is the meeting at an appropriate stage to discuss the rehabilitation and general management of the claimant. I think this is one of the current exciting developments in serious personal injury litigation. It requires good faith on both sides, and a genuine desire to find

solutions which are good for the claimant, but which might not necessarily be the most expensive. It goes hand in hand with the ongoing search for non-court solutions to litigation issues in personal injury. It may seem odd, but I think that advocacy, in its wider sense, is just as important out of court as it is when presenting to a judge if not more so.

Bill Braithwaite QC has launched a blog section on his website.

Bill is blogging every week to keep up to date visit www.billbraithwaite.com
Please find a selection of recent blogs below. Tuesday 10, April 2012 - Were here to serve our clients I've just finished reading several articles on the Legal Services Act, and the impact and opportunities for UK lawyers (the opportunities for outside investment and management). I agree that we need to run our businesses efficiently, and my own Chambers have been managed progressively, in a corporate way, for at least 20 years. I do feel strongly though that, in the claimant personal injury world, we need to keep a firm hold on the reasoning behind what we do. Were here to serve our clients to the best of our ability; to make sure that our ability is up to the job; and to make quite sure that our business interests, or our own profit, do not get in the way. Our Chambers approach is that, although we are running an efficient and effective business, it a business with the sole aim of providing professional services, professionally, and with the clients best interests at the heart.

CAPACITY
One area where advocacy is potentially essential is the issue of mental capacity. Ive seen many traumatic brain injury cases where mental capacity may be a relevant issue; my impression is that they are getting potentially more difficult. Where there is a real dispute about whether a patient has capacity, the starting point is the Mental Capacity Act of 2005. Although it did not really change the law in this area, it did emphasise various fundamental principles which should guide claimants lawyers. The statutory principles are that a person must be assumed to have capacity unless it is established that he or she lacks capacity, and all practicable steps must be taken. An unwise decision does not necessarily prove lack of capacity; it might do, of course, depending on the circumstances, and a series of them might well be indicative. Claimants lawyers represent the claimant first and foremost, and we have a duty to pursue that persons instructions and best interests, and to do so against the fundamentally important background that he or she has the right to manage his or her own affairs unless and until there is good, reliable evidence that this right should be taken away. Sometimes, there are differing views between the client and the family, and that can be a problem which requires delicate and thoughtful management. One of the accepted principles in good management of catastrophic brain injury claims is that the family should always be consulted if possible, and that they may have the best view of the claimant, better perhaps than medico-legal or treating experts. However, it is possible that the family will have views or interests which conflict with those of the claimant. It is not always obvious that there are conflicting or inappropriate interests, and lawyers need to be alert to the possibility. Over the last few years, I have had the feeling that we (lawyers and doctors) should explore the patients thought processes in more detail than we do. Careful and thorough questioning is likely to be useful, but not if it is conducted as some sort of general knowledge test eg what is inflation (a question I have seen relied on by a doctor). Similarly, I doubt whether it is necessarily sufficient to ask the claimant what he or she would do with a large sum of money, and to be reassured by the reply that he or she would seek advice. Importantly, the evidence needs to be scrutinised for reliability; sometimes it is not as straightforward as it seems. This is an area where lawyers may have to inform doctors, because the latter may not be quite as restrictive about what amounts to reliable evidence. If youre interested in the legal detail of the capacity issue, and the Mental Capacity Act, its all set out in my book.

Wednesday 4, April 2012 - Provisional damages for syringomyelia Since a recent case (Kotula), provisional damages for syringomyelia have been on our minds rather more, and I think that were pursuing them rather more than previously. That raised a question for me recently; what happens if a syrinx does develop in a way which has a financially significant, adverse, effect on the claimant? On the face of it, if the syringomyelia causes, for example, an increased need for care, the claimant is entitled to apply for further damages to reflect the extra cost. So far, so good. But what if the syringomyelia reduces the claimants life expectancy, so that, if his damages were re-assessed in the light of the syrinx, they would be reduced? I think the answer is that the wording of section 32A of the Supreme Court Act 1981 allows the court to award further damages if it thinks fit. In other words, it has discretion whether to increase the existing figure, but not to reduce it.

Bill Braithwaite QC

I realise that I am bigging up my own profession, but I feel that there is a serious point to be considered about the creation of the most effective team in cases of severe (not just catastrophic) injuries. The best results in major personal injury claims are achieved by good teams; those who have been there, seen it, done it, won it, and lived to tell the tale! I have heard the view expressed, admittedly not recently, that a solicitor would only instruct a barrister if it was obvious that the case was going to trial. That is a view that I disagree with fundamentally. One of the many functions of a good advocate is to prevent unnecessary trials, and that is usually done by a combination of skills, including the ability to draw on previous experience of cases which have gone to trial. I am a very firm believer in creating the team at the outset not necessarily all the members of the team, but the main ones. For example, the lead medical expert is likely to be one of the most important choices, as is the care expert. Similarly, I feel that the barrister, either silk or junior depending on the case, can be an invaluable addition to the team. Depending on skill set and experience, one of the major contributions which can be made to the patient is the treatment of his or her problems. In order to achieve that, it is usually helpful to have a knowledgeable rehabilitation expert,

Sunday 4, March 2012 - Credit to excellent defence QC I had a settlement meeting last week which was particularly enjoyable. Part of the reason was that the defence QC is very good, which makes our lives easier. It is so much better if you can have a sensible and realistic discussion about the strengths and weaknesses of each side; by doing that you can evaluate risks, and balance them against the benefits. Also, the case was well prepared, so that we had a good idea of the claimants need. The end result is another case finalised, and another judge avoided!

DISCOUNT RATE AGAIN

APIL met with the Ministry of Justice again on the 15th February, and they confirmed that the methodology, ie the use of gilts as the standard, is still part of the consultation process, which may lead to a report in April.

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David Knifton secures substantial awards for air crash victims

Damages totalling almost 1m were awarded by the High Court in Newcastle recently to 2 men who suffered severe injuries in a catastrophic aircraft accident.
Jim Martin and Jon Ker, both keen pilots, were taking a short flight to Eshott airfield, near Morpeth, Northumberland, on 30th December 2007, when the tailplane suddenly detached from the aircraft, causing it to nose-dive. Owing to what the judge described as the extreme skill of Mr Martin, a highlyexperienced commercial pilot for the Great North Air Ambulance, the aircraft was directed towards a copse at the edge of Burgham Park Golf Course, where it crashed into the trees, causing severe injuries to both occupants. A subsequent investigation revealed that the aluminium lugs attaching the tailplane to the fin had failed, due to stress corrosion and tensile overload. Contrary to Civil Aviation Authority requirements, the lugs, which were of a new design fitted when a replacement tailplane was supplied shortly before Mr Martin and Mr Ker bought the aircraft, had never received type approval in the UK. Although French manufacturer Dyn Aero denied liability for the accident, on the basis that they had not assembled the aircraft, Exchange Chambers barrister David Knifton advised that they were liable as producers of a defective product, in accordance with the EC Product Liability Directive and the Consumer Protection Act 1987. At the trial in Newcastle on 13th January 2012, Judge Simon Wood accepted that the accident had caused a profound change in the lives of both Claimants. Mr Martin (almost 54), suffered severe head and facial injuries, together with serious fractures to his pelvis, shoulder, elbow, hand and both legs, requiring extensive hospital treatment and numerous operations. He was no longer fit to fly, and had been left with permanent scarring, pain, restricted mobility, loss of smell and mild memory impairments. He had nevertheless, according to the judge, shown a degree of stoicism which was truly humbling, and had been able to find work training police helicopter pilots in Abu Dhabi. His employment was, however, less congenial than his previous job and involved long periods of separation from his wife. There was a significant risk of his being unable to work to normal retirement age, and he would no longer be able to pursue his previous activities of mountaineering and hill-walking, or to perform the many DIY tasks he had previously undertaken around his home. Mr Ker (42), a senior paramedic with the Great North Air Ambulance, suffered a brain injury, together with serious fractures to both legs, again leading to extensive hospital treatment. Although he had made a very good physical recovery, apart from aching and weakness in his leg and loss of his senses of smell and taste, his brain injury had left him with difficulties in remembering new information, such that he was no longer capable of fulfilling his ambition to become a commercial pilot, and he had struggled to hold down a number of jobs since the accident. He had, however, been able to secure employment as a remote site medic on offshore ships, again involving long periods of separation from his partner. Paying tribute to the courage and fortitude shown by both men, HHJ Simon Wood awarded damages totalling over 650,000 to Mr Martin and over 260,000 to Mr Ker. Steps are now being taken to enforce the award against Dyn Aeros assets in France. Commenting on the awards, David Knifton, who has acted in a number of substantial claims involving aircraft accidents, said: I share the judges admiration for these 2 remarkable men, who have shown tremendous courage and determination in facing up to the consequences of such serious injuries with dignity and good humour. Mr Ker said: Its a real relief that the judge found Dyn Areo liable. This hasnt been about the money but about proving that the accident wasnt our fault. We did everything correctly that day yet because the lugs were faulty we ended up suffering serious injury. We could have died. It was only Jims skill which saved us. Mr Martin added: The last five years have been a mental and physical battle but we were both determined that we wouldnt let this accident stop us from living our lives. We loved our jobs working with the Great North Air Ambulance but because Dyn Areo allowed a faulty product to leave their factory weve paid the price. Paul Brown from Thompsons Solicitors said: Mr Martin and Mr Ker have shown bravery and strength in the way they have dealt with their very serious injuries. Both have tackled their extensive rehabilitation with courage and have gone onto find alternative employment, despite the hurdles their ongoing injuries create. They are an inspiration and we are delighted we have been able to achieve this judgment.

A persons capacity to consent to sexual relations

In a recent case heard in the Court of Protectioni Hedley J considered the difficult question of the capacity of a person to consent to sexual relations. Chris Barnes explains why the decision may be of some importance to those conducting claims involving acquired brain injury.
answer to the issue before him. He made the general observation that: Any sexual act between human beings is a complex process. Although sharing physical similarities to sexual congress in the animal kingdom, that between human beings is qualitatively different. It has not just a physical but an emotional and moral component as well.ii Hedley J went on to formulate, as best as he could, the strands of the relevant testiii: So let me turn then to Section 3(1) of the 2005 Act with the question of sexual relations specifically in mind. First comes the question of understanding the relevant information, but what is that? Clearly a person must have a basic understanding of the mechanics of the physical act and clearly must have an understanding that vaginal intercourse may lead to pregnancy. Moreover it seems to me that capacity requires some grasp of issues of sexual healthIn my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. I do not think more can be required. The greater problem for me is whether capacity needs in some way to reflect or encompass the moral and emotional aspect of human sexual relationships. I have reflected long and carefully on this given Miss Jenni Richards Q.C.s challenge to formulate and articulate a workable test. In relation to the moral aspect, I do not think it can be done And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abusedIn my judgment one can do no more than this: does the person whose capacity in question understand that they do have a choice and that they can refuse? Hedley J acknowledged that all this may have deepened rather than dispelled the legal fog in which this concept of capacity to consent to sexual relations had drifted but was driven to find that H did not have sufficient capacity to consent to sexual relations. In the context of her particular case that had profound consequences in terms of restricting her liberty. In order to ensure that she was protected from sexual exploitation, and given the findings as to capacity, accommodation was required with 1:1 supervision at all times during the day and waking supervision overnight. She was not free to leave that accommodation without 1:1 supervision. While the circumstances in the H case were particularly pronounced, sexualised behaviour of a claimant following an acquired brain injury is regularly encountered. In such a case, the H case may be of assistance to both the legal representatives and case manager in determining the appropriate way and/or steps to safeguard the clients welfare.
i

Chris Barnes

As might be expected in such a case, the circumstances leading up to the trial of the issue were both tragic and disturbing. H was 29 years old and had mild learning difficulties with atypical autism. She attended a special school aged 5 to 17 and community college until aged 19 before leading an itinerant lifestyle until admitted to a psychiatric hospital, initially as an informal patient, in 2009. Her history demonstrated a very early and a very deep degree of sexualisation. Given her autistic condition she was highly vulnerable. At least one man had been convicted in respect of a sexual offence against her of attempted rape. Others were engaging in sexual behaviour which, whilst consented to by her, could have been seen as unconventional and exploitative. After referring to various reported cases Hedley J suggested that none provided an

5.85m compensation for brain-damaged boy

Damages of 5.85m were awarded to a young man who had suffered a catastrophic brain injury when he was thrown across a room by his birth mother as an 11 week-old baby in 1991. At a hearing under the Criminal Injuries Compensation Scheme in Manchester on 19.1.12, the Tribunal was told that J had fractured his skull when his head struck the wooden arm of a settee, but his mother failed to seek medical attention for a further 4 days. By the time he was admitted to Hospital, he was suffering from the effects of an extensive brain injury, which had left him profoundly disabled, with significant physical and learning difficulties, together with severe behavioural problems. He was incapable of independent living and would require lifelong 24-hour care and support from experienced carers. Having been taken into local authority care, J was later adopted. Exchange Chambers barrister David Knifton, who acted pro bono throughout the case, commented after the hearing: It was a genuine privilege to have represented such a caring and committed family, who have made enormous personal sacrifices to provide a stable and loving home for J. I am delighted that the compensation award will now secure his future, enabling him to live with his family in adapted accommodation, with the support of a skilled care regime.

A Local Authority v H [2012] EWHC 49 (COP) Para. 20 At para. 23 to 25

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Our Personal Injury department boasts a wealth of expertise in handling the most severe catastrophic claims through to high volume paperwork. Our members include: Bill Braithwaite Q.C. Gerard Martin Q.C. Tania Griffiths Q.C. William Waldron Q.C. Amanda Yip Q.C. Simon Earlam Anthony Goff Paul Kirtley Roger Hillman Paul Clark Guy Vickers David Knifton Mark Mulrooney Louis Browne Rebecca Clark Catherine Howells Simon Vaughan Dr Kevin Naylor Mark Garside Dr Simon Fox Claire Gourley Sheren Guirguis Pankaj Madan Louise Metcalf Paul Burns Katharine Titchmarsh Sian Jones Neil Smart Nigel Edwards Christopher Barnes Andrew Ward Laura Jane Gooding Christian Taylor Sara Sutherland Emma Bennett Kerron Rohrer Chris Gutteridge Richard Tetlow Alfred Weiss Gareth Shires Jeremy Durston Lee Speakman

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