Hats off to Stewarts Law

The law firm, which has offices in London, Leeds, New York and Delaware, entered six teams in last Saturday’s London triathlon. The teams consisted of partners, associates, trainees and paralegals, as well as clients and their friends.

Photo courtesy of  Julian Chamberlayne

I applaud the firm's commitment to the triathlon not just because exercise is a good thing. What’s better yet is that all involved were raising money for Dan's Fund for Burns, a charity which provides burn survivors in the UK with ongoing support, resources and practical assistance with their recovery. The charity was established by Polly Miller (a former client of Stewarts Law) after her husband Dan, best friend and seven other friends were killed in the 2002 Bali bombing. Polly herself was badly burnt in the attack.

Polly's experience – which revealed that many burn victims receive virtually no support from health care professionals – led her to set up her admirable charity. Much though it does excellent work, the fact that the charity exists cannot but cast a spotlight on the NHS. The glare intensifies when we consider the Draft Care and Support Bill, published last July.

The Bill aims to create a single law for adult care and support, replacing more than a dozen different pieces of legislation. It will provide the legal framework for putting into action some of the main principles of the White Paper, entitled 'Caring for our future: reforming care and support'. So far, so sensible, but a close look reveals that the provisions of the Bill are wanting.

In an earlier blog, I objected to the Bill's idea that people may have to pay for care by selling their homes, an initiative which cannot but have serious consequences for their offspring and which seems to me to amount to a death tax, and may affect large numbers of seriously injured people.

The efforts of firms like Stewarts Law in last Saturday's London triathlon are to be praised for redressing the deficiencies in present social care system, but the Bill needs to tackle these deficiencies head on.  Here's hoping that there will be due consideration by the lawmakers of the plight of people such as one of Stewart's former clients. Having sustained serious burns injuries he became a double amputee, but he was able to cycle his recumbent bike in the triathlon. Well done to Julian Chamberlayne and Paul Paxton, the firm and all involved - and if you'd like to help out, its still not too late to make a donation by visiting: http://www.justgiving.com/StewartsLaw-LondonTriathlon.

Postcard from Berlin

Towards the end of last week I found myself rushing to catch a plane to Berlin. I duly checked in to The Westin Grand Hotel on Thursday evening, the reason for my visit being the 15th anniversary annual conference of PEOPIL.

PEOPIL is the Pan-European Organisation of Personal Injury Lawyers. The conference began at the Westin Grand on Thursday morning, which meant that I missed its first day, but there remained two days in which a number of topics dear to those who work in the PI sector were covered. They ranged from talks about the recovery of punitive damages in European courts and the use of medical experts to an excellent presentation on establishing jurisdiction by Philip Mead of Old Square Chambers.

However, rather than remark on the technical matters discussed at the conference, I hope regular readers will allow me to make a few general observations.

First, the power of Twitter was harnessed to great effect at the conference by no less a figure than Gerard McDermott QC. In between tweets wishing the Cambridges luck in their privacy action and commending the Times’ coverage of the UBS trial McDermott QC – a leading barrister at Nine St John Street and Outer  chambers – urged more PI barristers to attend conferences like PEOPIL (he observed that only himself and Philip Mead had made the trip) and noted a number of interesting points, for example concerning “conflicts between Hague Convention and Rome II regulation and opportunity for forum shopping”.

As well as updating followers on what was happening at PEOPIL, McDermott, who specialises in medical malpractice, product defects as well as catastrophic road traffic accident litigation, added a few snapshots of Berlin. We saw the Brandenburg Gate and also learnt that “The Westin Grand in Germany is a truly Grand hotel. Built by East Germans before unification. I think to show what they could achieve.”

Twitter-speak doesn’t allow for fulsome descriptions, but I can endorse what Gerard McDermott said about the Westin Grand. It’s a truly remarkable place, located in Berlin’s historic centre. It oozes atmosphere and has possibly the most efficient and friendly staff I’ve ever met. The Brandenburg Gate is nearby, so too many other historic locations – the Reichstag building, the Potsdamer Platz, the Gendarmenmarkt and Museum Island. Berlin’s transformation following reunification in 1990 means that the area is also full of elegant boutiques and designer shops.

I visited another nearby famous place – Checkpoint Charlie, the best-known Berlin Wall crossing point between East Berlin and West Berlin during the Cold War. While once a symbol of repression, Checkpoint Charlie is now a major tourist attraction, surrounded by souvenir stands selling all manner of tat (especially fake military items). I have to say that I wasn’t hugely impressed by this aspect – it reminded me a little of the anti-climax of visiting Land’s End – but it is nevertheless impossible not to be moved by even a fleeting visit to Berlin, replete as it is with so many landmarks of European history.

Towards the end of Saturday my visit came to an end. At Tegel Airport I experienced something unusual – German inefficiency. I managed to board my plane, which departed at 5pm, but I had cause to wish that the staff of the Westin Grand were working at the airport. The atmosphere verged on mayhem and I seriously doubted I’d get through security and make my flight, but back in Britain I was hardly consoled  by Chelsea’s 0-0 draw at QPR. By all accounts it was an even game, with my team playing effectively to secure a point. Here’s hoping that effectiveness makes for three points in the next game – and here’s to widening Gerard McDermott’s plea: it’s not just more barristers who should attend conferences like PEOPIL, it’s solicitors and everyone who cares about the future of PI law.

Dawn Makin’s case is absolutely tragic for the loss of the life of a young child, as well as the devastating subsequent impact on her life

It also puts the spotlight on serious data protection breaches in the personal injury sector.

A few weeks ago the tragic case of Dawn Makin hit the headlines. The former nurse killed  her four-year-old daughter, Chloe in February 2011 before seeking to take her own life. Dawn Makin herself is now wheelchair bound following the suicide attempt. She is now serving a 12-year sentence following conviction for the killing.

Cases in which a parent kills a child are always awful. How, we wonder, is it possible that any parent would ever do such a thing? Our hearts go out to the poor, innocent child.

The data protection breach background pales into insignificance by comparison. Dawn Makin was sacked for illegally accessing a computer at Moorgate Primary walk-in centre in Bury. Why did she do this? To pass on the confidential, medically sensitive and personal details of 29 road accident victims to her boyfriend Martin Campbell, who worked for a personal injury claims company and who has since pleaded guilty to data protection offences.  He and Dawn Makin split up but she, too, was due in court to on data protection charges after a number of patients quite properly complained to NHS Bury in May 2010. Consequently Dawn Makin lost her job.

Judge Anthony Russell, passing sentence, stated: “The facts of this case are appalling. The victim was a four-year-old child, someone who trusted you. This was a sustained attack. Chloe must have undergone significant and considerable physical and emotional suffering. Finally, the physical injuries you have caused to yourself which are permanent and the knowledge you have killed your only child will be with you for the rest of your life.”

We should also condemn, in the strongest fashion possible, the very existence of the culture that facilitated the actions of Martin Campbell.

If personal data protection rights were properly respected, and the law observed, there would have been no mileage in Martin Campbell seeking to persuade his partner to reveal confidential medical information. As it is, the regrettable truth is that, as you read this, someone, somewhere will be illicitly selling on personal data.

We must hope that cases such as Dawn Makin’s mark the absolute limit of the tragedy that can indirectly  flow from data protection breaches, and further hope it acts as a catalyst to an impetus to prevent continued and future breaches.

Simmons v Castle: a small step in the right direction, but sadly that’s all

The Court of Appeal recently declared that general damages in most tort actions are to increase from 1 April, 2013. That’s good news, isn’t it?

I wish it was, but a closer look reveals that it isn’t necessarily so. The Court of Appeal’s judgment came in the case of Simmons v Castle. The endorsement of a settlement between the appellant motorcyclist and respondent car driver saw the Court of Appeal hold that it had an ongoing responsibility and the power to monitor and set the guideline rates for general damages in tort claims, including personal injury actions. Any such rates would be neither rules of law nor practice rules, but judges at first instance should consider themselves bound by them.

Hence, their Lordships ruled in favour of an increase in damages – but only by 10 per cent. The judgment sent insurers calculating  by how much they will need to  increase consumers’ premiums. They, along with the rest of us, had assumed that any increase in general damages would come through the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), also in April next year. But at the same time as insurers lament the guidelines of Simmons v Castle, so do personal injury lawyers who work at the coalface. The fact is that 10 per cent is nowhere near a large enough increase in rates for damages that have remained static and too low for far too long

This is not just the view of a claimant solicitor. Over 10 years ago, in 1999, the Law Commission Report No. 257 concluded that in cases where general damages exceeded £3,000 they should increase between 50% and 100% (with an appropriate tapering rise for cases where general damages were between £2,001 and £3,000). The Commission found that damages were not generally commensurate with claimants’ losses but also that “the ongoing non-pecuniary effects of many injuries are far greater than anticipated by victims at the time that they receive their compensation.” The Commission’s conclusions were reached after extensive research and an opinion poll on public attitudes to levels of compensation.

This issue was considered by the Court of Appeal in the 2000 case of Heil v Rankin. Regrettably, the recommendations of the Law Commission were not generally accepted. The Court held that in cases where the general damages exceeded £10,000 they should thereafter increase by 33%. However, there would be no increase for cases where general damages were under £10,000.

Little has happened since the Heil judgment. The recommendations of the Law Commission have not been implemented. Meanwhile, the cost of litigation has continued to rise. LASPO continues to wend its way through the legislative process, but there is no sign of provision for well-thought out increase in levels of damages envisaged by the Law Commission – as ought to be the case.

Now, along comes a recommended increase of 10 per cent, originally recommended by Lord Justice Jackson, implemented before April next thanks to Simmons v Castle. In some ways, we should be grateful as some were doubtful such a decision would come at all, but the truth is that as a society we are still woefully under-compensating injured people. We are still a long way from a collective endorsement of carefully considered recommendations which were made by experts, after due diligence and research, as long ago as 1999. The 'Simmons' adjustment does not even counterbalance the LASPO none recoverability provisions. As such, it is a step in the right direction, but that’s all it is.

The DWP’s Mesothelioma Scheme: Just Not Good Enough

Amid all the excitement of the Olympics it is perhaps no surprise that a press release issued at the end of July attracted little attention. It came from the Department of Work and Pensions, and sounded like a piece of very good news in announcing that, from 25 July, £300m was being pledged for the support of mesothelioma victims.

There was a catch – and hats off to The Observer for disclosing it last Sunday. In this piece, Jamie Doward highlighted the fact that the scheme is only available to future victims of mesothelioma, a form of cancer caused by exposure to asbestos.

To be fair, the DWP’s original press release, issued on 25 July, made clear that the scheme would only apply to “newly diagnosed victims”. It stated that the scheme “will allow around 3,000 mesothelioma victims across the UK who are unable to claim compensation because they cannot trace a liable employer or employers’ liability insurer to receive approximately £300m in payments in the first 10 years”, adding that around “300 mesothelioma sufferers a year currently lose out on compensation because they are unable to trace a liable employer or employers’ liability insurer”.

Lord Freud, the Minister for Welfare, declared: “We have worked tirelessly together with the insurance industry to agree this package of measures on behalf of those who face this terrible disease. The new scheme will mean that, for the first time, sufferers of diffuse mesothelioma, who cannot trace either a liable employer or employers’ liability insurer, will have access to extra payments.”

That sounds fine, so far as it goes – but the trouble is that it doesn’t go far enough. For starters, it seems that there will be a two year delay in the implementation of the scheme owing to the need for primary legislation. Mesothelioma is a terribly aggressive cancer, and the life expectancy of anyone diagnosed with it is nine months to a year. This means that anyone diagnosed with the disease now is likely to die before the scheme comes into force.

Moreover, as The Observer reports, there is considerable disquiet at the fact that the scheme only benefits suffers of mesothelioma. People suffering from asbestosis, pleural thickening and asbestos-related lung cancer are excluded from the scheme, but campaigners say these conditions amount to 50% of all asbestos diseases.

No wonder Tony Whitston, the chairman of the Asbestos Victims Support Groups Forum, told The Observer he was “bitterly disappointed at the exclusion”. He went further, accusing the government of acceding to the wishes of “rich and powerful insurers”.

I have previously alluded to the rather too cosy relationship that exists between the present government and the insurance industry, and have much sympathy with Mr Whitston. There is something about the wording of the DWP’s press release that is worrying. Lord Freud comes across as too keen to praise insurers (in saying how “tirelessly” they have worked with the DWP), and the press release is also at pains to point out that the scheme is “funded by insurers”. Then comes a quote by Otto Thoresen, the Association of British Insurers’ Director General (rather than someone from, for example, the Asbestos Victims Support Groups Forum). Mr Thoresen has this to say:

“Mesothelioma is a particularly aggressive cancer and the insurance industry, working with government, is determined to do all it can to ensure that sufferers get the support they need as soon as possible. This package of measures will deliver help to claimants much faster, including to those who would otherwise go un-compensated.”

Regrettably, though, this conjunction of the government and the insurance industry has not done all that it can. The scheme only applies to people suffering from mesothelioma since 25 July this year, will not be wholly effective for two years, and excludes a vast swathe of asbestos-related conditions. The bottom line is that many people will continue to go un-compensated, and, as so often when it comes to this government and the PI sector, so-called ‘reform’ simply isn’t good enough.