Mark Garside - Musings of Stage 3 Hearings05/10/17
Prior to the final death knell of RTA portal claims (will it happen?) I thought it might help if I put together some thoughts as to the issues that need to be considered when preparing for a stage 3 hearing. Having conducted what must amount to hundreds of these hearings I hope my advice might still be of use both to claimant and defendant solicitors. Rather like the hearings themselves this will not be an article based upon a close analysis of caselaw. Not for nothing have I heard these hearings being called "drive by" or "drive through" justice. Considering the type of case involved that's not a bad metaphor.
Let me start with general damages. The first point to make (trite I know) is that it is for the claimant to prove their case. I view this in the stage 3 arena as meaning that the medical report or reports should be as factually helpful as possible. I have heard it argued and indeed argued it myself that any doubts contained in the medical report should be resolved in the defendant's favour as the claimant has failed to fully prove their case. There are a number of ways in which a judge can be stopped from complaining about the quality of the medical evidence. The first consideration is the timing of the report. Now I know insurance companies want it both ways. They criticise solicitors for delay in obtaining reports ("Sir/madam by the time that the medical report was prepared the good doctor was relying on the self reported injuries of the claimant with no independent verification at examination because the claimant's injuries had already resolved") and they criticise solicitors for obtaining medical reports too soon ("How on earth can the medic have come up with such a pessimistic prognosis so shortly after the accident?"). In my view and I should add I have no empirical evidence for this (!) a period of 2-3 months is appropriate to quell most negative comments.
Next, consider whether the medical report gives sufficient information for both parties to make as accurate an assessment of the likely level of general damages as possible. Severity of initial symptoms, medical treatment needed, when did the symptoms start to improve and by how much? What impact did this improvement have on the claimant's loss of amenity? Don't just consider how long the claimant was off work and then on restricted duties but how were they restricted (not just "postural difficulties at work" if at all possible). Make sure there is reference from the move from severe to moderate, from moderate to mild and then to mild and intermittent if such a move there has been. It almost goes without saying but the Judicial College Guidelines trump all. When I started this job we used to provide little bundles of authorities. If I'm honest if I did it now they'd be ignored!
Finally on the medical front (and I know I'm going to be controversial here) if physiotherapy has occurred consider whether or not the discharge report will help in terms of clarifying the resolution of the claimant's injuries. I know there will be those amongst you who will be shouting "but it's a privileged document" but there are two counter positions to consider. The first is the assistance it will give to the court as outlined above and the second is that if it has been of assistance you are much more likely to recover the discharge report fee when arguing about special damages.
Which point brings me rather nicely onto physiotherapy fees. This is comparatively straightforward. We're looking at triage fee/advice booklet, initial assessment, physiotherapy sessions and discharge reports. I've already dealt with the latter. With regard to triage/advice document judges almost invariably, if not completely invariably will not award it and an assessment fee. It certainly appears to cover the same ground. If you know differently then please let me know. I've never seen a home exercise booklet. That appears to be a more realistic item to claim. I can guess what they do (I've never seen one) but any details as to what they cover will be gratefully received. Assuming the triage fee is not allowed you will normally recover the assessment fee. £70 seems to be the norm although on one recent occasion a judge awarded it at the same rate as the regular physiotherapy session fee. As for the rate of the physiotherapy itself judges take a mostly consistent approach but sometimes you get one who behaves like a premier league referee (inconsistent!). Normally a figure between £50 and £55 is awarded but the occasional judge is prepared to take notice of the fact that locally rates are as low as £40 (particularly in Blackpool). It is helpful to provide evidence in this regard but I did hear it once argued that more should be awarded for the fact that the service is essentially on an interest free credit basis.
Proper invoices are always the best. Proforma invoices do not cut the mustard because they are not evidence that the physiotherapy has taken place. I don't know how a judge would react if presented with a proforma invoice and a discharge report but its always better to get a proper final invoice and for it come from the physiotherapy provider rather than an umbrella organisation. In more recent times telephone physiotherapy has become fashionable. I don't come across it very often and if I'm honest it seems self defeating to me. I think I'd probably make my injuries worse whilst self administering physiotherapy when clinging onto a telephone. However, I have heard that judges make awards for it (but presumably at a reduced rate).
Now for car hire. If you'll forgive me I'm going to race through this (particularly if your client or the claimant depending on your viewpoint had hired a flash, sporty motor). I'm not sure I can add much to the mountain of litigation that has accrued on this issue. Perhaps the following is helpful. Remember to demonstrate need and impecuniosity so a short statement and plenty of bank accounts, accounts, credit card statements and the like, otherwise you will recover nothing or be stuck with spot rates (assuming spot rate evidence has been filed).
Miscellaneous. Again we're in premier league referee territory. Some judges will award most of it, some have a set sum they always award and some award nothing. Make of that what you will. The best guidance that I can give is that the argument that the claimant will have incurred some expenses (particularly if medication is referred to in the medical report) is one that finds favour with more judges than reject such a suggestion. Travel expenses are often included in this section. 45p per mile is the favoured rate. Some evidence as to the distance travelled and why is always useful. But not the cost of the trip to visit the medic who prepared the GP report (or indeed any expert report) is not recoverable as it is considered a litigation expense. With regard to the cost of telephone calls etc I have tried arguing that in this modern age electronic communication means that this is far cheaper than it used to be. The normal response to this is an indulgent smile!
I'm running out of topics now. I had wondered about waxing lyrical about "massage" which I have seen successfully claimed. I'm not sure how that is different to or better than or an alternative to physiotherapy. But with an invoice it may be recoverable as a reasonable step in the mitigation of the client's suffering.
I'm not going to deal with costs as they are standardised (save for psychological reports of course). Payment terms are worth mentioning. After general credit has been given the norm for payment appears to be 21 days. I personally have no problem with this but the rule actually stipulates 14 days unless there is a good reason to depart from it. Suggesting that payment periods can be between 14 days and 28 days and, therefore, 21 days is a happy medium does not make a good argument but judges nonetheless appear happy to allow this period of time.
It's ironic that in places like St Helens (but not Manchester) the stage 3 hearing will have taken less time that its taken you to read this!!