The importance in evidencing heads of loss

30 Sep 2021

With many cases quite rightly settling before a trial and parties being encouraged to negotiate, it is not often that insurers have the opportunity to ask for a judicial consideration of quantum. This recent judgment of Deputy District Judge McCormack provides helpful guidance on valuation and the importance of evidencing heads of loss.

At a quantum trial at Willesden County Court the claimant, a forty-two-year old man, received £45,313 total damages after he was hit by a vehicle as a pedestrian in October 2017. He suffered a fracture to his left leg for which he underwent an open reduction internal fixation, and a severe soft tissue injury to his right leg. He also developed compartment syndrome. He was left with noticeable, permanent scars on both legs and a bulging right calf muscle. He claimed for extensive and ongoing massage and physiotherapy, which was disputed.

Despite the severity of the injuries and the case being pleaded at over £80,000, BLM successfully argued for the case to remain in the Fast Track (with fixed costs payable). Detailed analysis of the disclosure by BLM enabled us to highlight the claimant’s prompt return to work and to dispute a late application to add further head of loss worth around £30,000, which was not sufficiently evidenced, including a substantial travel claim. Rather than seeking our own medical evidence, we challenged the claim for future treatment using Part 35 Questions to the claimant's orthopaedic expert, who agreed that such treatment was not required.

The quantum report is available here.

What this means for you

It is important to take a realistic view of settlement and to have in mind the judge’s likely approach when negotiating. We seek to put the claimant back into the position they would have been but for the accident, and concrete arguments on valuation may assist your submissions in allocation to track and reduce overall costs expenditure. Proportionate and reasonable Part 35 Questions can be very effective to narrow issues, and insurers should be confident that a court will not criticise a forensic investigation or legitimate challenge to heads of loss where appropriate or where there is a lack of evidence from the claimant in support.

 

Lindsey Bartling is an Associate in the Catastrophic Team. She was instructed by Andrew Beadsley of Direct Line. BLM instructed Helen Waller of 12 King's Bench Walk.

For further information please contact Lindsey.bartling@blmlaw.com

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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