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Professional Negligence in Personal Injury Claims

If a solicitors firm holds itself out to be a specialist in a particular area of law, then the client is entitled to expect that the conducting solicitor will have an in depth knowledge of the law concerning his matter, and be given appropriate advice. Sadly, that is not always the case. When a client comes to realise that he has not in fact received the service he paid for, he may seek the advice of another firm.

This is what happened to one of our clients, who we shall call “C”. He initially instructed another Shropshire firm to pursue an application for compensation to the Criminal Injuries Compensation Authority (CICA), following an assault in which he sustained a severe brain injury. C suffered a skull fracture resulting in a subdural haematoma, requiring craniotomy surgery and partial right frontal lobectomy (removal of brain matter). As a result he was left with permanent cognitive and memory impairments, severe fatigue, headaches, epilepsy and destruction of his sense of taste and smell.

Advised to Accept Award of £19,950

The local firm instructed by C held themselves out as having experience and expertise in CICA claims and of those relating to head injuries. C’s claim was handled by an unqualified fee earner with little or no supervision. An application form was submitted to the CICA and whilst C was working at the time of the application, no consideration was given to his prospects of holding down his job or his care needs. In any severe brain injury case, medical evidence is essential to understand the extent of the injury, its effects and its prognosis. Unfortunately, the firm acting for C obtained no expert evidence. C was advised to accept an award of £19,950.00. This was based on the CICA tariff amounts for loss of taste/smell, sub/extradural haematoma and depressed skull fracture. There was no tariff award for brain damage and no award for past and future financial losses.

Dissatisfied with the outcome of his claim, C sought the advice of personal injury specialists at Lanyon Bowdler, to whom it was instantly clear his claim had been under settled. Lanyon Bowdler obtained the files from the previous firm and upon consideration of these felt there were grounds upon which to pursue a professional negligence claim.

The case against the previous firm was essentially that the negligent conduct of the application to the CICA had resulted in an award of £19,950.00, when in fact C should have received the maximum award available under the scheme of £500,000.00.

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Award of £500k Made

Due to a technicality, the personal injury lawyers at Lanyon Bowdler were able to reopen the CICA claim, (this is only possible in a limited number of circumstances). Expert evidence was obtained in the fields of neurology, neuropsychology and care. Ultimately, an award of £500,000.00 was made.

But what of the legal costs that C had incurred in instructing Lanyon Bowdler to reopen his CICA claim, and the interest he had lost over several years waiting for his CICA claim to be finalised? Not to mention the wasted fees incurred with the negligent firm? These were all pursued in a separate professional negligence claim against the negligent firm.

It was fortunate for C he was able to reopen his CICA claim and also to the advantage of the negligent firm, as this meant the claim against them was significantly reduced. Had C not been able to reopen his CICA claim, he would have claimed the difference between the award of £19,950 and the £500,000.00 maximum, as part of the professional negligence claim. However, it is important to remember that professional negligence claims are valued on a “loss of a chance” basis to reflect the fact it could never be certain he would have indeed receive the maximum £500,000.00, even if the firm had not been negligent. For example, a lower offer could have been made by the CICA, which may have been acceptable to C. He may have decided to accept a lower award despite receiving advice to the contrary.

Claim for Professional Negligence

As a result of his brain injury, C is not capable of managing his financial affairs. Therefore Court approval of the settlement in the professional negligence claim was required. The Judge commented that the defendant law firm had “bowed over to a derisory offer” and “did not properly advise” C. He described the defendant firm as grossly negligent.

Professional negligence claims, where there was initially a personal injury, require knowledge of the law in both areas ie personal injury and professional negligence.

The leading case in professional negligence states that the defendant solicitor should be judged by the standard of the reasonably competent practitioner specialising in whatever areas of law the defendant holds himself out as a specialist in.

It is unfortunate for C and others like him, when trust in the legal profession is eroded by the negligence of others. They are forced to prolong the legal process, no doubt causing distress and inconvenience given their previous experience.

However, there are things you can do to reduce the risk of professional negligence occurring. Enquire as to the qualification, experience and supervision of the person who is dealing with your claim. Brain injury claims are legally complicated and should be conducted by fee earners with experience and a proven track record in this area.