UK: Case Study Involving Life-Changing Injury And International Law

In August 2014 Patricia was seriously injured in a road traffic accident in Lisbon, Portugal.

Patricia was born in Portugal and moved to the UK in 2008. At the time of her accident, she looked after for her three children and her nephew, all of whom lived with her. Patricia's daughter has a heart condition and was under the care of a specialist in Portugal. Her son has autism and epilepsy, requiring a lot of care and attention.

Prior to her accident, Patricia was in her second year of study for an HND in Health & Social Care. Her aim was to become a social worker specialising in autistic and disabled children so that she could better understand her son's condition and help other children to have the best chance in life. 

In August 2014, Patricia took her daughter to Portugal for her bi-annual check-up. Patricia and her daughter used the opportunity to stay in Portugal and visit friends and family. 

On the night of the accident, Patricia had met friends at a bar in Lisbon. At the end of the night, one of Patricia's friends drove the group home. 

Patricia was sitting in the back seat of the car when they were overtaken by another vehicle. This startled Patricia's friend and caused her to lose control of the vehicle. Patricia recalls the car spinning and only stopping when it collided with a lamp post.

As a result of the accident, Patricia suffered a spinal cord injury.

Patricia was hospitalised in Portugal. However, she told the doctors she needed to return home to the UK, close to her children. Patricia was repatriated to the National Hospital for Neurology and Neurosurgery. She was then transferred to the London Spinal Cord Injury Centre at RNOH Stanmore for rehabilitation, where her partner and children were able to visit. Patricia was discharged home in December 2014 and spent Christmas with her family. 

Patricia's home was unsuitable for her post-accident. Patricia was wheelchair bound and it was difficult to enter the house in her wheelchair. Also, she had no access to the bedrooms or bathrooms, all of which were on the first floor. The only option was to sleep and attend to her personal hygiene in the living room with the assistance of carers. This meant that she had no privacy or quality time with her children. The local authority had no suitable housing available.

Stewarts assisted Patricia in obtaining an interim payment of £120,000 to cover her immediate rehabilitation needs, including the costs of finding a more suitable rental property within the vicinity of the children's school. 

Whilst Patricia and her family were settling into their new home, Stewarts issued High Court proceedings and sought an early admission of liability from the defendant, the Portuguese insurers of the vehicle belonging to Patricia's friend. 

There were several unusual features about Patricia's claim which Stewarts' expertise helped overcome:

• The defendant insurer denied that the owner of the vehicle was driving at the time of the accident. They claimed that the vehicle was being driven by another friend who had had no licence and had been drinking.
• The question of who was driving would determine whether the applicable law to the claim was English or Portuguese. This would substantially affect the amount of damages that Patricia would be entitled to receive.
• The defendant insurer had not admitted liability irrespective of who was driving.
• The defendant insurer alleged that Patricia had been sitting on a child booster seat at the time of the accident and that this had a causative impact on her injuries.
• There were issues around the extent to which Patricia could recover not just for her personal care needs, but also the cost of replacing her care for her son.

During the claim Stewarts succeeded in obtaining regular interim payments, totalling £770,000, to help Patricia fund the costs she was incurring as a result of her injuries. 

In July 2016. the defendant made a Part 36 Offer to settle the claim for a lump sum of €5m, the limit of the Portuguese insurance policy plus costs. At the time there was an ongoing dispute between the parties about the interpretation of the insurance indemnity and its impact. This would be determined at trial if necessary, but the defendant sought to put forward a pragmatic approach to bring the claim to a conclusion. In September 2016 this offer was accepted.

After Patricia accepted the defendant's offer to settle, the defendant disputed the sum to be paid. It argued that that deductions were to be made for the cost of medical care received in Portugal. Also, that the exchange rate to be applied was that at the date of payment rather than date of acceptance of the offer. 

Following the EU referendum result, the value of the pound was in decline. The defendant sought to take advantage of this by arguing that the exchange rate to be applied was at the date of each payment; if this was correct, they would pay less. 

At a court hearing, Stewarts argued that the terms of the Part 36 offer had been clear and unambiguous. The court agreed. The defendant could not take advantage of the strengthening Euro to try and gloss over the fact that they had applied incorrect deductions. The defendant was ordered to pay an additional £205,648 plus interest. 

With the damages she received Patricia has now moved to a larger, adapted property. She has employed full time carers to assist her, as well as additional care for her son. She has also been able to visit her family in Portugal. 

Stewarts' dual expertise in complex injury claims and international law enabled us to overcome the many complications that arose and secure the maximum sum under the insurance policy within less than two years. Patricia is now able to fund all her treatment and care, and the needs for her and her children's future.

Testimonial 

"I found Stewarts to be highly professional and I was very impressed with how they dealt with my case. At the start of the case they found me an expert in Portuguese law to assist with matters they did not know about.  They always explained the situation to me clearly and gave me choices as to how matters would be dealt with. 

Stewarts gave me good advice and as a result my life is now better. They also helped me a lot with the case manager and I know what I can expect for my future."

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