NHS

 

On 10th October 2018 the Supreme Court unanimously upheld an appeal by the Claimant that a hospital, whose A&E reception staff told a patient he would have to wait up to five hours before receiving treatment for a head injury, was in breach of it’s duty of care.

The Case

The Claimant, Michael Mark Junior Darnley, who was then aged 26, was assaulted in the late afternoon of 17 May 2010. Later the same day he telephoned a friend and told him about the assault. He said that he felt unwell and had a headache which was getting worse. His friend advised him to seek medical attention and drove Mr Darnley to the Accident & Emergency department at Mayday Hospital (now known as Croydon University Hospital).

Mr Darnley gave an account of the incident to the A&E receptionist but the receptionist told him that he would need to take a seat and wait up to 4 or 5 hours before he could be seen.  The receptionist did not notify Mr Darnley that the hospital had a priority triage system and that patients with head injuries were fast tracked and would be triaged within 30 minutes.

As a result of this omission Mr Darney did not wait in A&E because he had started to feel very unwell; he asked his friend  after waiting 19 minutes to take him home where his condition worsened.  He was subsequently taken by ambulance back to Mayday hospital where he was diagnosed as having a serious head injury with bleeding on the brain. Mr Darnley was left with a permanent brain injury and severe paralysis to the left side of his body.

The Court in the first instance and at appeal ruled that the incorrect information being given by the receptionist did not amount to a breach  and the Court of Appeal held that:

  1. The Trust did not owe Mr Darnley a duty to advise him about waiting times,

  2. The damage he suffered was outside the scope of any duty that was owed to him, and

  3. There was no causal link between any breach and his injuries; he was told to wait, but chose to leave. 

Mr Darnley’s defeat sat very uncomfortably with many Clinical Negligence lawyers.

The Ruling

The Supreme Court overturned these decisions and Mr Darnley was successful in showing that the receptionist owed a duty of care and that the duty was breached.  Furthermore the chain of causation was not broken because it was foreseeable that Mr Darnley may have left A&E after being advised that he would have to wait in the region of 4 to 5 hours.

This decision came as welcome news to many, who had felt that Mr Darnley had been denied justice previously.   Of course he would rely on the information given to him at reception and it was easy to see that he would have stayed, considering he was feeling so unwell, if he knew that an assessment of his injury would take place within 30 minutes, merely 11 minutes after he left. 

The Supreme Court’s decision is undoubtedly the right decision; Mr Darnley should be compensated for his injuries and patients should be able to rely on information given to them by medical and non-medical staff.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who have suffered at the hands of medical professionals. 

We are also experienced Brain Injury Solicitors who will arrange a specialist Brain Injury Case Manager to help plan and implement a rehabilitation package which can incorporate your health, psychological, educational or occupational needs.   We will work with medical, clinical and other experts to value your past and most importantly, future needs, such as personal and medical care, income, accommodation and transport.

Where possible we will secure interim payments to assist with day to day and rehabilitation needs throughout the course of your claim.

If you would like to speak to our team of specialist Clinical Negligence or Personal Injury Solicitors to discuss your case, call us today on 0203 551 8500 or use our Contact Us form to tell us more about your case and arrange a callback.

 

 

A promise was made. But is that enough?

For a proprietary estoppel claim, you must prove not only that promises were made, but that you, in reliance of these promises, acted to your detriment. The recent case of Gee v Gee and another [2018] EWHC 1393 (Ch) explores these familiar principles of a proprietary estoppel claim, but also brings up some further interesting points to consider. As this case shows, this is a claim that you do not have to only bring upon death, as the son brought this claim during his father’s lifetime.

The Background

This case involved a son successfully bringing a claim against his father and brother, as he was not transferred the land and company (the farming business) that he expected from the years of promises made by his father. The father owned the farming business and land together with his wife (who owned a minority interest). The land was owned by the father, mother and company in the respective shares of 7/18ths, 7/18ths and 4/18ths. The company consisted of 24,000 shares, all of which were held by the father except for one share being held by the mother. The father therefore held the controlling interest in the business and the land.

The claimant (JM) helped his father with the farming business for over 30 years, unlike his other brother (Robert) who only started to contribute since 2012. JM did receive a wage throughout the years that he contributed to the farming business, at a rate that was “equivalent to the minimum wage for an agricultural worker set by the Agricultural Wages Board”.

JM and his father had a difficult relationship, but as the Judge pointed out in this case, this indicates further that JM’s time and efforts spent farming were in reliance that he would have a majority interest in the business, and land. In 2014, the father transferred his entire assets into the name of his other son Robert, as opposed to JM. In an attempt to restore some balance to the situation regarding the transfer to Robert, JM’s mother transferred her minority entitlement to JM.
 
JM began a claim under proprietary estoppel and was claiming for a greater entitlement to that which he received.

The Result

The Judge commented that some of the representations were made indirectly by JM’s father to JM and this meant that JM could not reasonably rely on it. However, he did find instances in where such assurances were seriously and directly made to JM. The Judge then decided that detriment and reliance had also been established as JM had been working for long periods of time “without adequate compensation” and that JM “gave up the chance to better himself and work elsewhere”.  The Judge recognised the farming enterprise would not have been what it was today without JM’s input. The Judge decided that on the merits of this case, a claim of proprietary estoppel was made out.

Does the fact that the father wants to change his mind about where his assets go not matter at all? The answer is it will depend on the facts of the case. In this matter, the Judge found that for the father to retract from the representations he made, it would be “inequitable to do so”. 

The Judge interestingly pointed out that even though JM had received gifts from his parents in the past, that these were “given to him as a result of his status as a family member, not as compensation for time and effort spent farming”. The Judge found that even though it is relevant that JM’s mother transferred her share to JM, it was not enough to make up for the promises made by JM’s father.

When considering what remedy would be right to award, the Judge confirmed he would base this on expectations held by JM. However, he took into consideration that JM was aware that his father was “changing his mind about how the farm was to devolve” and that Robert had also started to contribute towards the business, which called for a reduction in what was to be given to JM.

The Judge decided that JM should return what he was given by his mother, and he should receive “52% of the shares [in the business] and 46% of the land” instead. A successful result for the claimant; JM gained a controlling interest in the business, which was at the heart of the matter.

The Judge did note that his approach would leave the “company in the hands of multiple shareholders” which could case further “trouble for the future” but he felt that this was “unavoidable”. A clean break was not awarded because the value of the land could increase dramatically in the years to come.

What About You?

Have you “positioned [your] life” around promises made to you? Have you relied on these assurances to your detriment? Or is somebody claiming that you have been making such promises to them?

We Can Help

At MW Solicitors, Our Mission is "To make quality legal services accessible to everyone" and we can provide a case review to examine the merits of your case.  We can help progress a claim or defend against one depending on the evidence provided.

Our Estate and Trust Disputes Team are waiting to take your call.  Don't delay, call us today on 020 3551 8500 or tell us about your case using our Contact Us page

Complex Regional Pain Syndrome

On Tuesday 9th October MW are proud to be hosting the inaugural London and South East Burning Nights Support Group meeting.

Complex Regional Pain Syndrome

Burning Nights is a charity dedicated to raising awareness and supporting people affected by a poorly understood nerve condition, Complex Regional Pain Syndrome (CRPS).

CRPS can cause a person to experience persistent, severe and debilitating pain along with other symptoms. The condition may develop after an injury, surgery, stroke or heart attack, but the pain is out of proportion with the severity of the initial injury or trauma. Over 65% of cases are caused by soft tissue injuries. The cause of Complex Regional Pain Syndrome isn’t clearly understood and CRPS awareness in the UK is low. However the earlier a diagnosis of CRPS is given, the better the prognosis is for a patient.

There is no cure for Complex Regional Pain Syndrome (CRPS).  It is a chronic and life-changing condition.  There is a range of treatments available to help manage symptoms, including physiotherapy and occupational therapy, psychological therapy, medication, regional and lumbar blocks, neurostimulators, implants, alternative therapy and pain management programmes.

The aim of the support group is to  enable CRPS sufferers, carers, families and friends to meet others in a similar situation and share experiences and advice.  The opportunity to build a supportive social network can be a lifeline to those experiencing isolation as a result of a chronic pain condition.

We are delighted to welcome two guest speakers to our first meeting:

  • Martin Leppard will be inspiring us recounting his amazing journey from a devastating CRPS diagnosis to competing as a successful triathlete.
  • Stephen Cottrell of Devereux Chambers will be discussing how, from a legal point of view, attitudes to CRPS are finally changing for the better.

We Can Help

At MW Solicitors, Our Mission is "To make quality legal services accessible to everyone" including those suffering from CRPS which has developed following injury. We provide expert support and guidance in what will be difficult and challenging times and put you in touch with other organisations that can help such as BURNING NIGHTS.  Based on our wealth of experience we will  seek to achieve a financial result that makes a real difference to your long-term security as we as providing the care and assistance you need. .

If you would like to talk to us about your case today call  us on 020 3551 8500 or use our Contact Us page

 

MW Solicitors are proud to announce that the firm has been shortlisted as Finalists in two categories at the British Legal Technology Awards 2018.


David Fazakerley
David Fazakerley
Chief Information Officer

The nominations are in the category of “Alliance of Year” with technology partner Infotrack and in the category of “Most Innovative Law Firm of the Year” for the development work MW Solicitors have done creating web based portals for their clients.

In response to the announcement MW Solicitors Chief Information Officer, David Fazakerley, said:

“To be named finalists out of hundreds of submissions is an achievement in itself and is recognition of the progressive work MW staff have been doing on behalf of their clients.”

With the judging panels now completed, Representatives from MW will be present at the awards ceremony on 1st November where the Winners and Runners Up will be announced.

This is the first year MW have been shortlisted in these awards and is a testament to the progress in technology that we have made especially given the judging panels are made up of the UK’s leading industry experts in academia, technology providers and peer law firms.

Alliance of the Year Award Most Innovative Firm of the Year Award
Alliance of the Year Most Innovative
Law Firm of the Year
Brain and Vestibular Injury

 

In recent months there have been three judgments where the Claimant has sought to prove a subtle (mild) brain injury, claiming a number of ongoing symptoms and impairments, including vestibular (balance and dizziness) injuries.

Pinkus v Direct Line

The Claimant was involved in a road traffic accident on the M4 when another vehicle moved into the fast lane and collided with the Claimant. The injuries claimed included a mild traumatic brain injury and psychological symptoms. The Claimant claimed that his injuries caused him to lose his job a few weeks after the accident and that he has not worked since apart from some unsuccessful attempts at short term contracts. His claim totalled in the region of £850,000. However, the Judge found that the Claimant had consciously exaggerated and had given inconsistent accounts of his symptoms. The Judge held that the Claimant had been fundamentally dishonest and dismissed the claim in it’s entirety.

Hibberd-Little v Carlton

This claimant was involved in a rear end collision and claimed that she suffered a mild brain injury, a diffuse axonal injury, resulting in a cluster of cognitive and physical problems, psychological issues, concussion of the auditory and vestibular symptoms resulting in vestibular migraine and hyperacusis. She also suffered a soft tissue injury to her neck and upper thoracic spine. Her claim totalled £4.4 million. However, the Judge preferred most of the Defendant’s medical expert evidence and was not satisfied that the accident had caused an organic brain injury with cognitive, behavioural and audio-vestibular symptoms. In addition the Judge did not accept much of the Claimant’s witness evidence as there were inconsistences with her medical records and an absence of a clear timeline. The Claimant was awarded just £41,250.

Joseph v The Commissioner of Police of the Metropolis

The Claimant was again involved in a rear end collision. She complained of a number of ongoing symptoms including dizziness, imbalance, headaches, difficulty thinking, poor memory and poor concentration. A key factor in the judge deciding that there was no traumatic brain injury was the preference of the defendant’s neurology expert who was of the opinion that there was no post traumatic amnesia. She was awarded £388,181 but of the future losses claimed totalling £1,183,051, she was awarded just £151,800.

We Can Help

The poor outcomes of these cases for the Claimants demonstrate that each case is individual and requires the knowledge and expertise of a specialist Personal Injury solicitor when preparing and building a brain and vestibular injury case. 

At MW Solicitors we have many years of experience of undertaking brain and vestibular injury cases, achieving successful outcomes.  We are experts in:

  • Preparation of accurate and consistent witness statements.
  • Selecting appropriate medical experts.
  • The careful consideration of what each medical expert is saying.
  • Claiming sums appropriate to the injuries which can be proved.

If you have suffered a brain or vestibular injury and have not yet instructed a solicitor, or if you have an ongoing claim and are unhappy with the way the case is progressing, our expert Personal Injury Solicitors are waiting to talk to you.

Don't delay, call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk

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