27th March 2014
Additional damages in Personal Injury cases (lower limb and foot).
A Lawyer colleague pointed me in the direction of this snippet recently:
“in an action for damages for personal injuries (including any such action arising out of a contract) there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978 , or of any corresponding facilities in Northern Ireland” (ref 1).
It is important that we recognise what is being said here. Essentially it allows Lawyers to go outside of the NHS to obtain the best care for their clients.
In real terms this means recognising the extent to which clients may be affected by their injuries, and then referring them to the right people for treatment, or the right Expert for assessment and recommendation.
Physiotherapy has long been recognised as a useful treatment modality and is often used to help clients under immediate provisional damages.
Footgear, including custom footwear and orthoses, is an underutilised treatment modality. Silicone cosmesis (to hide scarring and skin disfigurement) even more so.
Both are adequately covered by additional damages provision.
When assessing an injured Claimant I examine their feet, ankles, and their gait.
Have they sustained an injury to their feet or ankles, or had surgery to their legs which has affected their feet or ankles?
Are they able to walk as far and with as little effort as before their accident?
How would a fit and healthy individual of the same age and same routine activity levels compare with the Claimant?
And is there any disfigurement resulting from the accident and/or any subsequent surgery?
If there is a gait problem it must be identified. Subtle gait changes are often missed by NHS clinicians.
Lack of push-off is common in one foot after injury, but affects both feet because of the way in which one leg is dependent upon the other for normal walking.
The question then becomes “ how do we resolve this problem?”
Often the Claimant has been sent to me by an Orthopaedic Surgeon, with a request for in-shoe orthotics to help walking now and to reduce the likelihood of developing problems later.
I may decide that the case could be better helped by bespoke footwear, in which case I will advise accordingly.
A simple example of how care outside of the NHS can benefit the Claimant is when a female Claimant needs bespoke footwear after injury. The NHS can identify a need and supply shoes, in black or navy, in limited styles, at the rate of one pair or two pairs every three years or so.
Contrast that with privately-sourced footwear – Winter boots, smart shoes, leisure shoes and slippers in different styles and colours with no restriction – red. blue, yellow, black – rather as the Claimant may have bought footwear before her accident.
Often I see Claimants who have had surgical ankle reconstructions, the ankle being a susceptible area to injury in RTAs. The reconstruction usually involves the surgeon going in on either side of the ankle, and of course two scars are left, often with pigmentation around the scarring. The ankle may be disfigured as a result. Off less interest to male Claimants, the female Claimant with a disfigured ankle will find herself unable or unwilling to wear skirts. A solution may be black tights to hide the ankle, but this does not address situations like going on holiday, where the ankle may be exposed.
The answer to this is an inert silicone cosmesis cover which can be custom-made for the Claimant, and coloured to exactly match the other limb. The cover can be worn as needed, perhaps not as everyday wear, but there to allow the Claimant the choice of having a natural-looking ankle when appropriate. Inked-in tattoos are optional (seriously).
All Personal Injury cases Claimants are routinely assessed for both footwear and silicone cosmesis in Court Compliant Reports from this office.
Accurate costing are provided as necessary, and academic and clinical references are used to justify private provision of these items where needed.
(1) Section 2 – Law Reform Personal Injuries Act 1949