Uncertainty a Normal Risk in Injury Cases

Some injuries have an uncertain prognosis and it can take time for the final outcome to be clear.

A man who sustained a serious foot injury in January 2010 brought a claim for damages for the injury in January 2012, at which time his prognosis for recovery was unfavourable. An offer of £50,000 was made to settle the claim. The offer was neither accepted nor rejected.

Following surgery on his foot in April 2014, the revised prognosis was more unfavourable, and a claim of £248,000 was made. Six months later, a further report was made and the prognosis was more favourable than before, so the man accepted the offer of £50,000.

The court then had to deal with the issue of legal costs. The normal rule as regards costs incurred once an offer is made is that the claimant must carry them from the time it is made until it is either accepted or the court awards damages that are equal to or less than the offer. If the damages awarded are more than the offer, the defendant pays their own and the claimant's legal costs.

In this case, the offer was accepted long after it was made. The man argued that it would be unfair if he had to carry the legal costs for the period after the offer was made until it was accepted, as the outcome was uncertain. Unsurprisingly, the defendant disagreed.

After he was initially successful in court, the Court of Appeal ruled against the man, holding that uncertainty of the eventual outcome was part of the usual litigation risk and that a manifest unfairness could not be demonstrated which was sufficient to depart from the normal rule.