EWJ June 2024 web - Journal - Page 28
d) failed to consider the provision of statutory care in
the immediate or long term;
Take the example of an accident in early 2016 (the
same period as Muyepa). At that time, the discount rate
was 2.5%. Let’s say that the claimant claimed future
care of £25,000 per year for life when 40 years old.
The multiplier would have been 26.25 (£656,250). At
hypothetical trial, the Defendant manages to reduce
the multiplicand to £17,500 (£459,375). The Defendant saved £196,875 on damages, but the litigation
costs might have made it a close-run thing.
e) used the full care rates for any task, no matter how
menial; and
f) included a “need” for assistance looking after/
supervising children, doing the school run etc postretirement, at a time when the Claimant’s eldest children would be in their late twenties.
As above, fault does not simply lie with the experts
who had lost sight of (or never knew) the relevant
principles. Criticism was equally levelled at the legal
representatives for adopting the erroneous approach
within the schedules. It is worthwhile all lawyers reading paragraphs 292 to 298 of Muyepa for a reminder
of the principles.
Transpose the example to today, but assume a higher
degree of inflation of the care claim (with a few errors
in principle such as those seen in Muyepa and Scarcliffe). Let us say £35,000 claimed per year, but with
the same result of the Defendant achieving £17,500 at
trial. At -0.25%, with a multiplier of 47.6, the Defendant’s saving has grown to £833,000. A sum that
would more likely than not cover both costs budgets
with plenty left over.
Lessons for Defendants – If You Want Peace,
Prepare for War
The received wisdom for some time in personal injury
and clinical negligence litigation has been that fighting
to trial is too expensive. It is, therefore, more cost
effective to settle claims and they should be run
accordingly.
One can see that in cases where mistakes have been
made by the experts and the claimant’s legal representatives, as in Muyepa and Scarcliffe, the expense of
trial for the Defendant is quickly surpassed by the savings that can potentially be made on assessment of
damages. The economic argument for settlement did
not stack up in these cases. Cost efficiency was found
in fighting.
The cost-benefit analysis held true in the past, but less
so now. First and foremost, the mathematics have altered with the change in discount rate in 2017 and
2019, pushing damages far higher. When one compounds that with the issue of care (and to an extent
employment) report inflation over the same period,
the analysis can change substantially.
There will be further such cases where there are
substantial savings on offer to the defendant who is
prepared to fight to trial. This will be so until care
claims (and loss of earnings claims) are properly and
Professor Kayvan Shokrollahi
BSc MB ChB MSc LLM MRCS(Eng) FRCS(Plast)
Consultant Burns, Plastic & Laser Surgeon
Mr Simon Costain
I am a consultant Burns, Plastic and Laser Surgeon and author of some
of the key textbooks in our specialty. My interest in medicolegal work is
underscored by a Master of Law Degree.
Podiatric Consultant and Gait Specialist
MRCPod, FRCPodM, FRCPodS, BSc, FET
I am the Clinical Lead for the Mersey Regional Burns Service at Whiston
Hospital, and Editor-in-Chief of the Journal Scars, Burns, & Healing which is
the world’s only scar-focused academic Journal. I am also Associate Editor of
the Journal Annals of Plastic Surgery and have published over one hundred
journal articles. My work in reconstructive plastic surgery has been the subject
of an interview published in National Geographic Magazine.
David Simon Costain is a Podiatric Consultant with over 45 years of practice
experience and is one of the co-founders of Podiatric Surgery in the UK.
Mr Costain is the CEO of the Gait and Posture Centre in Harley Street, London,
and he specialises in the analysis of gait related musculo-skeletal problems relating
to foot and leg malfunction.
He divides his time between his private practice and expert witness work, with
Witness Certificate.
I specialise in work relating to adults and children in the following areas:
- personal injury and major trauma including burns
- scarring
- clinical negligence (including consent issues)
- lasers
- extravasation injury
- pressure sores
– reconstructive surgery
- skin cancer.
Contact: Gait and Posture Centre
Redacted reports and references are available on request, and the C:D ratio
is 50%.
approximately 75% of his work being for the claimant, and 25% for the defendent.
He has been involved in some criminal cases involving his expertise in gait analysis of
CCTV footage and footprint analysis but concentrates now on Personal Injury expert
witness work
He has been regarded as a professional expert in his field since 1985 when he was first
registered with the Legal Services Commission as Podiatric Expert Witness. He holds
full Expert Witness institute insurance indemnity cover and has a Bond Solon Expert
Tel: +44 (0) 207 636 4465
Email: kayvan@shokrollahi.co.uk
Tel: 0161 906 7678
Email: medicolegal.secretary@outlook.com
Address: 10 Harley St, London & 88 Rodney Street, Liverpool L1 9AR.
Areas of work: London, Northwest, Midlands, Harrogate.
Nationally by prior arrangement and via videoconference.
Email: clinic@gaitandposture.com
Website: www.gaitandposture.com
The Gait and Posture Centre LLP
6 Harmont House, 20 Harley Street, London,W1G 9PH
Area of work: Greater London and surrounding areas
EXPERT WITNESS JOURNAL
26
JUNE 2024