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Personal Injury Litigation and Forensic Accounting Update

 

Summer 2003

 

Medical Topics

Whiplash injury

Every year about 800 people per 100000 sustain a whiplash injury in a rear end collision.

Typical features are commonly neck pain and stiffness. Headaches may also be a feature, in addition to thoracolumbar back pain with radiation to the shoulders. Often nerve root trauma causes pins and needles, pain and numbness in the arms with altered arm sensation (this is associated with a worse prognosis). Occasionally patients may also complain of jaw ache and dizziness.

In respect of investigation, these are often unhelpful. A whiplash injury is a soft tissue injury and X-rays are therefore not really useful, except to exclude bony injury. Even the more modem sophisticated scanning techniques are generally unhelpful. The reason for this is that it is thought that the facet joint in the cervical vertebrae is the main cause of symptoms and this is difficult to visualise, even with more modem imaging techniques.

In respect of treatment, anti-inflammatories are effective in the early acute phase. These have pain-killing properties if taken on an ''as-an-when-needed'' basis, in addition to anti-inflammatory properties when taken as a course of a few days or longer. Although cervical collars were previously used, these seem to be unhelpful and may exacerbate neck stiffness. Current thoughts are that early mobilisation is more effective than rest in this injury.

Physiotherapy may also be useful, particularly in the acute phase. Physiotherapy would also include advice regarding exercises and mobilisation as well as physical treatments. Chiropractic treatment may also be useful in patients with chronic symptoms. There is evidence to suggest that a large proportion of patients improve significantly with chiropractic treatment.

The vast majority of patients with whiplash injury make a full and complete recovery within two years. If symptoms remain present at two years, then further recovery after that period is unlikely.

Many patients will make a full recovery within a much shorter time period, and often within three months. Given the difficulty in making a prediction in the early stages, it is thought wise not to give a prognosis within the first three months of injury.

Factors giving rise to a poorer prognosis would include

1. Early onset of symptoms (within twelve hours);

2. Rear-end impact compared to side or frontal impact;

3. Women compared to men;

4. Adults compared to children;

5. Evidence of cervical root irritation;

6. Slight compared to stocky build;

7. Age thirty-five to fifty-five years;

8. Sitting in the front of the car compared to the back;

9. Looking sideways at the time of collision;

10. Previous psychological problems or degenerative cervical spine disease.

Peter Shelton

Veterinary Topics

Meetings of Experts

Solicitors involved in civil cases frequently ask their expert to meet with the expert on the other side to produce a document listing points of agreement and disagreement. The theory is that this is a good idea because it saves Court time and money.

From the expert's point of view it provides an opportunity to review their position when all the evidence has been disclosed. Sometimes they find that the other expert has vital evidence which ahs not yet percolated its way across the divide. An experienced expert will also use the meeting to gauge how strongly the other side holds a particular view and why. This may not alter his own view, but maybe useful in court.

Virtual meetings?

However, in order to save money, many of these meetings take place over the phone or by email. At least this stops those pesky lawyers trying to interfere &endash; or does it? During such meetings several version of the agreed text usually end up being produced ( my record so far is 14) and in all too many cases an expert uses such natural breaks to discuss strategy with their instructing solicitors. This is against the spirit of experts' meetings, but as nobody can ever prove that it ever happened…….

Such sequential meetings, especially those carried out by email, can take quite some time in terms of days elapsed if not in chargeable hours. So if time is of the essence, opt for a physical meeting if possible. We all know that experts can be busy, but nothing encourages sensible discussion and agreement more than a desire to get away and not have to return on another occasion.

Expert or lawyer, or worse?

There is something of a frustrated lawyer in many experts. In fact being well paid people at the top of their field, there is something of a frustrated judge about some of them. It is worth reminding your expert that the aim is to agree points involving their specific expertise, not to usurp the Court's role by deciding questions of fat. For example it would be wrong for experts to agree that Mr A had wormed his horse on September 1st. It would be reasonable for them to agree that the results of a faecal analysis carried out on September 10th are compatible with the horse having been wormed in the 3 weeks prior to that date. Experience as an expert is invaluable here in stopping the other expert steamrollering through the case.

I feel quite strongly that when we list points of disagreement it is reasonable to explain in perhaps one sentence why each expert disagrees. When we list points of agreement it may help the Court to point to the acts that led us to agree. What I do not think you can do is to state a point of agreement and then give opposing views from each expert. It is either a point of agreement or it isn't. Logically we should not say that 'we agree that the horse was wormed at some stage but expert X says that Panacur was used and expert Y says that he cannot say which drug was used.' The wording should be agreement that the horse was wormed, and a separate point of disagreement over whether it is possible to say which wormer was used.

The temptation for a judge is to skip through the experts' reports and concentrate on the results of their meeting. That document can have a major effect on the outcome, so you need to be sure that it was drawn up by someone who appreciates exactly how it will be used.

Colin Vogel

Accountancy Topics

Loss of Pension Calculations

There are three schools of thought on the loss of pension calculation front. There are those who believe that is expensive, and therefore normally only be done as part of the loss of earning calculation i.e. just claiming the tax credit; there are those who take the simplified approach, and base calculations - in most cases - on quotes from providers for personal pensions and on the scheme rules for final salary schemes; and then there are those who calculate the loss from almost first principles, a la the preferred method in Auty v Nat Coal Board [1985] 1 All ER 930; 1 WLR 784.

 

If you have turned off by now you are in the majority who simply ask their favoured accountant to do the calculations, but beware. There are judges out there who remember how you did the calculations last time. If you use a different method this time they will want to know why. You need to ensure you have on file an explanation of the method used, and why it is appropriate, and when you change experts, or they change method, that you notice, and change your explanation.

Here at the Chamber of Experts we normally use the middle approach. It is quick and simple to calculate the loss, and it is the easiest to explain to either the judge or the lay client. We continue, however, to be amazed, by the number of solicitors not claiming for any loss of pension. With a fixed fee approach the cost of calculating the claim is £500-£700 (depending on the type of claim) and if the claim is not going to be that large, we can tell at the outset, and avoid the costs.

Tim Vogel

 

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