Damages for elderly woman who sustained a serious leg injury while her husband was driving

Our client, a woman in her late seventies, suffered a serious injury to her tibia resulting in prolonged non-union after being injured in a car collision caused by her husband. Liability was admitted by the insurer early on although we had advised the woman that there was potentially the risk of a defence of automatism because her husband had a history of heart disease and the precise cause of him losing control of the car was not clear.

She had a series of setbacks and infections at the fracture site and underwent a bone graft, the fitting of an Ilizarov frame and the insertion of metal plates in her tibia, all to encourage bone growth and union of the tibia. These procedures failed to achieve union after nearly two years of intensive rehabilitation at The Clavadel in Guildford.

At the point at which the defendant insurer put forward an offer, it had made interim payments of £140,000 while her treatment and stay at The Clavadel was costing around £7,000 a month.

Because the defendant had started making interim payments generally on account of the claim, rather than specifically for rehabilitation at The Clavadel, it was important to obtain some interim medical evidence to justify her continuing care at the rehabilitation centre, over and above the recommendation of her case manager that he could not suggest a more cost effective care package at that time.

The defendant put forward an offer of £930,000 gross of interim payments made, ie another £790,000. It was not a Part 36 offer, but was designed to give our client a short but reasonable time to consider an early offer. A medical report was obtained from an orthopaedic consultant who considered the likelihood and sequelae of the three possible outcomes:

• bone reunion, resulting in significant mobility and independence levels
• non-union, leaving her requiring ongoing nursing care
• amputation, also leaving her requiring ongoing nursing care 

The expert believed that the most probable outcome was that she would be left with a ‘stiff non-union’ allowing her to walk only very short distances in her boot, but that amputation was unlikely at her age because the care and rehabilitation required meant that it would not be of significant benefit to her or give her increased mobility and independence.

The crucial question was what the likely annual cost of future care would be and what the appropriate multiplier would be given her pre-existing issues with mobility. It was counsel’s opinion that £790,000 amply compensated our client under all three scenarios, including an award for general damages likely to be in the region of £75,000 for non-union without amputation.

On this case it was interesting to note the defendant’s tactic of making a relatively early offer before a final prognosis could be given. The expert was asked to predict our client’s outcome as best he could on the evidence available. It appeared that the defendant was becoming increasingly concerned at the monthly rehabilitation costs and the extent of the interim payments. A useful note to take from this case is to obtain an interim medical report after a prolonged period of non-recovery in case the defendant makes a Part 36 offer.

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