Personal injury case success stories

M v Tavern Fayre

Quantum: female claimant, scarring to breast

Settlement on 10 April 2007

Steve Bradley of Hilary Meredith Solicitors, Wilmslow, instructed for the claimant

St Paul Travellers Insurance dealt with the claim for the defendant.

The accident occurred on 14 November 2005 when the claimant was 20 years old and was employed as a waitress at a Tavern Fayre restaurant. She was asked by her manager to put coffee cups away in a low cupboard. She crouched down to take the cups from a tray on top of the cupboard, and placed the cups inside.

Unknown to the claimant, moments earlier, a colleague had poured boiling water into two of the cups so they would be warmed before serving coffee to customers. Usual procedure was for the cups being warmed to be left adjacent to the tea and coffee facilities and the water heater. Liability was accepted by the defendant's insurers.

The claimant suffered a boiling water scald to the upper chest area. There was blistering to the chest wall and right breast and she was initially treated with ice-packs. The medical report, obtained four months post-accident, stated that the scarred areas remained itchy and slightly discoloured. There were five scars in total, the largest was 7.5 cm x 3.5cm, the smallest 3 x 1.5cm. Three of the scars were superficial.

The claimant was advised to use moisturiser twice daily to help with the recovery of the scarring, and to avoid exposing the scarred areas to sunlight. She expressed embarrassment and concern when the scars were exposed by wearing, for example, a low-cut dress. There were no significant psychological symptoms, however.

The scars fell under the JSB Guidelines for 'less significant scarring' where the 'overall effect ... and reaction ... is no more than that of an ordinarily sensitive young women'. The medical report was disclosed to the defendant's insurers and a global Part 36 offer of £5,000 was made, which included nominal special damages. The offer was accepted by the defendant's insurers.

Costs were recovered, including a success fee of 25 per cent. The claim was funded by a conditional fee agreement, with an ATE insurance premium of £819 which was also recovered in full from the defendant's insurers.

Bradlaugh v MOD

Judgment was handed down in the Newcastle County Court on the 10^th August 2009 in this matter. The case concerned a young solider who was discharged from the Army on medical grounds following sustaining a loss of hearing and tinnitus to his left ear only, after being exposed to gun fire and thunder flashes in a training exercise.

The Claimant longed to follow in his Father's footsteps and serve for his Country. At the age of 15 he signed up for the Army Air Corps (AAC) and was enlisted in December 2003, joining for duty in January 2004.

In November 2004, the Claimant was taking part in a training exercise. He was wearing ear defenders and was told to remove them, whilst he and his colleague manoeuvred to another point where there would be new ear defenders available. The Claimant duly did as he was told, but on reaching the next point there were no defenders available. He asked the Sergeant for the defenders, but then thunder flashes started to be discharged and the Claimant and his colleague returned fire. Immediately after the exercise the Claimant was aware of a loss of hearing in his left ear and a ringing. This was reported and he was taken to the sick bay.

The Claimant remained in the AAC for a further 2½ years, during which time he was on restricted duties and further had to wear double ear protection if exposed to further noise. In April 2007, following successive medical boards the Claimant, was discharged from the Army on medical grounds due to his hearing disability. He was also advised that he would not be able to pursue any career in the uniformed services.

The Claimant was not eligible for compensation under the Armed Forces Compensation Scheme (AFCS), as the deafness had to be bilateral and further the total loss over frequencies 1, 2 and 3KHz (the frequencies where speech is heard) had to be over 75dB. The Claimant therefore sought to be compensated for his losses through the civil Courts.

Liability was admitted in the early stages of Court proceedings and subsequently the Claimant was offered £2000.00, this was rejected as this award was not sufficient for general damages alone.

Further evidence was gathered and the Claimant maintained that he intended to be in the Army for 22 years and attain the position of Warrant Officer 1.

At trial the Judge found that the Claimant would have attained the full 22 years service. He found that the Claimant was a determined and proactive young man, who after being dealt this blow to his life plans decided to go to college and study film and television production. The Claimant is due to start University in a course in media production. However it was acknowledged by the Judge that whilst the Claimant may achieve this new dream, it may not be as financially rewarding as a career in the Army and thus the Claimant was awarded damages for future loss of earnings and future loss of pension. The Claimant also recovered an award for being disadvantaged on the open labour market and also loss of congenial employment, that essentially being an award for the loss of losing his dream employment.

What this case demonstrates are the inadequacies of the AFCS. This scheme was developed to compensate injured soldiers for their losses, whether the injury was incurred in the theatre of war, or through the negligence of another. However no account is given for other losses that may be incurred, which can be recovered in a civil action.

For a solider who is severely injured in action the maximum level under the AFCS is £570,000.00. This however is rarely awarded and was only increased following the tiresome campaigning of families of severely injured soldiers. However is this enough to cover care costs for the rest of a life? A 19 year old requiring care will have demands of up to £2million for the remainder of their life. Add to this adaptations and alterations to their home as well as compensation for their injuries.

Whilst some may say that injuries are to be expected in the theatre of war, one must remember that the MOD is an employer and that the same standard of a care applies to all service personnel. Comparisons may also be drawn between the present case and that of someone who is visually more disabled, however what one must remember is that Mr Bradlaugh has lost the opportunity to pursue his dream and therefore may never earn in the region of what he may have had done had he been able to remain in the Army.

Clearly the AFCS scheme needs a further shake up and the way in which monies are awarded needs to be reviewed. Injured soldiers need to be aware that the AFCS scheme is essentially not a compensation scheme, but is merely a pension enhancement scheme. We feel that the public and soldiers alike ought to be more aware of this and therefore invite the Ministry of Defence to consider renaming the scheme to something more befitting of a lump sum pension enhancement scheme.

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