At the beginning of February 2015, Julian Chamberlayne, Partner and Head of Stewarts’ International Injury team, and Christopher Deacon, Senior Associate specialising in international personal injury, settled the High Court case of Sarah Thomas v (1) James Baker and (2) Insurance Commission of Western Australia for the gross sum of £6.25m.
The settlement is thought to be the highest reported award for a paraplegic claimant in both England & Wales and Western Australia and secures the compensation required by our client to meet her future care, accommodation and rehabilitation needs, including access to regular hydrotherapy and the Ekso-skeleton robotic walking suit to enable her to be upright and walk once again.
Background
On 26 January 2010 Sarah Thomas was enjoying the trip of a lifetime journeying through Western Australia when her friend who was driving lost control and rolled the vehicle as he swerved to miss a lizard in the road. Sarah was ejected from the vehicle, leaving her with T12 incomplete paraplegia as well as other multiple injuries.
Due to the severity of her injuries Sarah required a long in-patient stay before being repatriated. Her father flew out to Australia and instructed a local lawyer who did not advise on the possibility of English jurisdiction and commenced a claim against the TAC of Victoria where the vehicle was registered. On returning to the UK, Sarah met with Julian whilst in rehab at Stoke Mandeville and decided to instruct Stewarts’ specialist international personal injury team to pursue her claim.
Allegations of contributory negligence were raised so we obtained reports from an expert in accident reconstruction to investigate the suggestion Sarah was not wearing a seatbelt at the time of the accident.
A further issue arose about who was the appropriate insurer and correct compensator. The accident happened in Western Australia but involved a vehicle registered in Queensland. Following advice from Australian Senior Counsel, we established ICWA was the correct compensator and it was joined to the proceedings in England. We subsequently reached an agreement on liability and the insurance indemnity issues with ICWA and were able to move forward with assessing Sarah’s claim for compensation, securing a substantial interim payment at the same time as judgment on liability.
Rehabilitation and Sarah’s claim for damages
Although the accident happened in Australia, English law applied to the assessment of damages as both Sarah and the negligent driver of the vehicle she was travelling in were resident in England.
Once interim funds were received we worked closely with Sarah to help with the search for alternative accommodation and alongside her case manager to ensure that a comprehensive care package, sensitive to Sarah’s needs and personal beliefs, was put in place and maintained so as to maximise her recovery. That support and the further funds also enabled Sarah to positively progress her rehabilitation with an extensive programme of physiotherapy and hydrotherapy.
The damages assessment was originally listed for October 2014, but was adjourned shortly prior to that date in a reported decision of Haddon-Cave J due to the diagnosis of an unusual hip dislocation issue which Sarah had been suffering from. This adjournment allowed time for Sarah to seek further expert opinion and for the parties to consider how the development impacted on their respective cases. It also allowed Sarah the time to trial two alternative robotic walking suits (Ekso and Rex) and start regularly using the Ekso-skeleton at the Royal Bucks Hospital where she was already attending weekly hydrotherapy sessions.
Settlement of Sarah’s claim
On 4 February 2015 at a settlement meeting with the Defendant and its legal advisors the case settled for £6.25m gross. The settlement also includes a provisional damages clause should Sarah develop a symptomatic syrinx in the future. Sarah’s use of the Ekso-skeleton and the new evidence relating to its suitability, together with the further opportunity to attend regular hydrotherapy, helped to convince ICWA and its legal team that an increase of £1 million on their previous offer to settle the claim was appropriate.
Sarah commented: “I could not have wished for a more outstanding result which far exceeded my expectations. I am elated at such a great outcome. This now enables me to look to a much brighter future and make choices that would otherwise have been out of my reach. I consider myself really very fortunate to have instructed Stewarts. They are incredibly skilled at what they do and their reputation continues to precede them. Every person that I had the privilege of working with from Stewarts were incredibly professional, approachable and completely trustworthy. Their keen eye for detail alongside their discernment I felt was acutely attuned to me as the individual, meticulously ensuring that every aspect of my life for now and for my future was catered for; what can I say apart from thank-you.”
This is not only the highest reported award of damages for a paraplegic client in England but also in Western Australia where the final award would have been an estimated £2m lower if Sarah had not correctly elected to bring her claim in the English High Court.
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Media contact: Lydia Buckingham, Senior Marketing Executive, +44 (0) 20 7822 8134, lbuckingham@stewartslaw.com
