Our professional negligence team are regularly asked, 'Can I sue my injury solicitor?' In this article Emma Slade looks at one particularly common cause for complaint; the injury settlement that is far too low.
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A personal injury solicitor has a duty to correctly quantify the value of your claim. If they make a mistake and advise you to accept a figure that amounts to insufficient compensation then you may wish to consider a negligence claim against them. There are a number of reasons why an injury solicitor might make a mistake. It is unusual (though not unheard of) for an injury solicitor to simply get the wrong figure for a particular injury; telling you that a broken arm is 'worth' a few hundred rather than a few thousand pounds for instance. Mistakes resulting in the under settlement of an injury claim tend to arise from a misunderstanding of more complex legal principles that dictate what you are entitled to claim for and how much can be claimed.
By way of illustration, take the legal principle known as the 'egg shell skull rule'.
So there you are, in the supermarket, minding your own business, trying to decide between free range eggs and organic ones, when a shopping trolley crashes into the back of you. Now while I could start making puns about being trolleyed (you may groan if you wish), something like that can hurt. You may even suffer a bruise or perhaps a laceration or two, but the reality is that serious injury is unlikely. But what if the resulting injuries do develop into something far worse? Osteoarthritis or scoliosis of the spine? Spinal stenosis leading to cervical radiculopathy (“pinched nerve”) or some other unpronounceable medical condition? It seems a bit extreme. These are injuries that are far more likely to result from a high-impact car accident, as opposed to being “trolleyed” (sorry!). But if before your egg-buying foray you were hale and hearty and you are now crippled you will inevitably feel aggrieved. So, what are you entitled to claim for when a relatively 'minor' accident results is serious injury? Can you really claim for the full extent of your injuries?
The simple answer is, yes, you can. It is the eggshell skull rule that allows the claim to be made. In criminal law, it is usually known by the adage, “you take your victim as you find them”. It means that if you give your victim a mild blow to the head but he has an unusually brittle skull, then even if the blow would not have harmed any other individual, you would still be responsible for any damage resulting to your victim, including brain injury or even death. So long as some harm is foreseeable as a result of your action, then you will be liable for all harm.
However, one exception to this in a personal injury claim is where the claimant had a pre-existing condition.
We get a lot of calls from people asking, 'can I sue my injury lawyer?' when they feel their claim has been undersettled. They are often left in considerable pain following an accident and cannot understand why they have received so little compensation. The legal explanation for the low award could be the presence of a pre-existing medical condition. This is a condition that would have eventually shown itself in the future (regardless of the accident) and has simply been brought forward in time because of the accident. In these circumstances you can only claim compensation for the period the condition has been exacerbated by.
Let me give an example:
Mr Roberts had been an enthusiastic football player in his youth, but in his exuberance had broken an ankle. It had healed very well without causing him any problems. Thirty years later though, whilst crossing a road, a car collided with him causing a number of (minor) injuries to the same ankle he had injured as a youth. Unfortunately, although to all intents and purposes the old injury had healed, x-rays showed that there were already the first symptoms of osteoarthritis having developed in the ankle and the experts concluded that, if the accident hadn’t occurred, Mr Roberts would have been limping in three years time anyway. So Mr Roberts was only awarded compensation for the three years by which the osteoarthritis had been exacerbated.
It can be a bitter pill to swallow, particularly when there are no obvious symptoms prior to the accident, but there is no reason to say the solicitor has been negligent or that the claim has been under settled in these circumstances.
However, where such cases can be undersettled is in the opposite situation: where the injury seems out of all proportion to the accident itself and does not stem from a pre-existing condition. Chronic Regional Pain Syndrome is one such example where something that is relatively minor can trigger excruciating pain.
I will give you another example here on a case I had the pleasure in assisting the then Coroner of my home county when I was a mere trainee solicitor many years ago. In that instance, our client was involved in a rear-end shunt. It should have resulted in minor whiplash but instead, his consequential injuries were phenomenal and quite rare. It started in his lower legs where his nerves and skin became hyper-sensitive and it gradually extended up his body. It was quite extreme: even a whisper of a breeze across his skin had him in agony. It resulted in him being largely wheelchair-bound and subsequently bedbound, needing 24/7 care and adapted accommodation for him and his carers. A minor shunt had therefore devastated his life.
He made a compensation claim and the other side fought tooth and nail to establish a connection between his symptoms and a pre-existing medical condition.They were unsuccessful and eventually settled his claim for a seven figure sum.
These are extreme examples, but they illustrate that injuries aren't always what they seem at first glance. Valuing an injury claim calls for specialist expertise and a good grasp of all the relevant legal principles. If an injury solicitor doesn't investigate a case properly, perhaps by failing to obtain medical evidence linking a claimant's medical condition to the accident, then the risk of under settlement arises.
If you feel that your personal injury claim has been significantly under settled, we are always happy to consider whether you can sue your injury solicitor. If there is no evidence they have got anything wrong we may not be able to help, but if they have, well then, “the yolk’s on them”: we will be more than happy to assist.
Emma Slade is a solicitor in our professional negligence department specialising in negligence claims against solicitors on a no win, no fee basis. We offer a free case assessment service. Submit brief details by email to firstname.lastname@example.org or call us on 0808 139 1595.
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