Katherine Lennon Partner Stewarts Solicitors The Interface Between The Case Manager And The Litigati

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Katherine LennonPartnerStewarts Solicitors
The Interface Between The Case Manager And The
Litigation Process In The Provision Of
Rehabilitation And Case Management
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The Litigation Process
Establishing primary liability in a civil claim
for compensation against a 3rd party.

• Law of Negligence
• Duty of care owed? e.g. driver to passenger or
  pedestrian.
• Has there been a breach of that duty?
• Causal link between breach and injury?
• The but for test.
• Has the Claimant also been negligent?
  contributory negligence?
• Test ON A BALANCE OF PROBABILITIES
• Burden - on Claimant
• Case Law

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Having established primary liability Valuing
the claim quantum

• Heads of Loss
• Pain and suffering and loss of amenity.
• Loss of earnings.
• Family and professional care.
• Brain injury Case Management.
• Accommodation needs.
• Equipment needs.
• Private medical or treatment costs, e.g.
  rehabilitation.
• Professional Receiver fees.
• Evidence Gathered In Support-
• Witness Statements-
• Family
• Friends
• Colleagues
• Brain Injury Case Manager

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Early release of compensation funds i.e. Interim
Payments

• WHEN AGREED/VOLUNTARY?
• Liability clear
• Early initial valuation of claim
• To aid recovery
• To assist with/provide rehabilitation
• To enable early discharge from hospital
• To make accommodation suitable
• WHY? In best interests of Claimant. and Insurer
• Enables Claimant to mitigate his losses.
• Reduces immediate suffering and may improve
  prognosis.
• May ultimately reduce value of claim

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When not agreed?

• Argument over primary liability.
• Non-proactive insurer.
• Dispute over use to which funds to be applied.
• Claimant must
• Issue and service proceedings.
• Await Defendants acknowledgement.
• File and Application for an interim payment in
  Court.
• Rules - CPR 25
• Claimant must prove-
• Will succeed on liability.
• Will recover substantial damages.
• That Defendant is insured or has the means to
  pay.
• That interim payment sought represents a
  reasonable preparation of likely overall damages.
• Case Law

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Evidence in Support?

• Immediate Needs Assessment under
• The Rehabilitation Code for Early Intervention
  Medical Treatment in
• personal injury claims 1999
• Key Features
• Early assessment.
• Outside the litigation.
• Independent Assessor (financially and
  managerially) from CL and DEF.
• Advs
• when liability not straightforward
• will take time to assess quantum
• Disadvs immediate needs only?

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Claimant Expert Evidence

• Early reports from-
• Neuropsychologist.
• Neuropsychiatrist.
• Care and Case Management Expert.
• Why?
• To document assessment of Claimants early
  condition.
• To provide an immediate opinion as to the
  Claimants immediate short-term needs.
• To support application for early interim
  payments.
• Advs?
• Continuity of evidence.
• Strength of evidence.
• Claimant led
• Wide reaching, e.g. accommodation, care and case
  management

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Availability of Defendant Expert Evidence?

• Claimant decision.
• Claimant is advised and chooses
• implementation and selects purchases.
• Statutory Sector?
• Availability of resources?
• Duty to mitigate losses.
• But act reasonably.

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Interim Funds Available

• Now what?
• Urgent needs?
• Statutory provision?
• Housing?
• Inpatient rehabilitation?
• Care and support package 24 hour live-in care
  or support worker/enabler?
• How can this be implemented?
• Claimant instructs a Brian Injury Case
• Manager!

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• Claimant solicitor refers/introduce. First
  port of call BABICM
• Client choice.
• Client or Receiver instructs and employs NOT
  Litigation parties.
• No such thing as a joint!
• See Wright -v- Sullivan

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Status in litigation?

• Lay witness NOT expert witness.
• May be asked to attend privileged conferences.
• Will be asked to provide a witness statement.
• Case Management records?

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Funded?

• How is the Case Manager paid by whom?
• Through interim payments and ultimately
• the final settlement award.
• By?
• Client or Receiver

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Why Set Up Rehabilitation, Care/Case Management
Before Conclusion Of Claim?

• Claimants best interests
• Early intervention - better outcome?
• To assist in understanding Claimants needs and
  therefore to assist in valuing claim.
• Tried and Tested.