The Serious Injury Team at Moore Barlow have recently obtained a six-figure sum in settlement for a client who sustained serious orthopaedic injuries whilst working in Germany.
The incident occurred when our client tripped over a ladder on the floor which was obscured by some polythene sheeting being used to divide the work area. Our client tripped on the concealed ladder and landed heavily on his right knee onto a concrete floor. He sustained a serious injury to his right knee which caused a fragmentation of his cartilage with loss of the articular surface, both in the medial and the patellofemoral compartments of his knee.
As a result of the injuries sustained, our client went on to require several rounds of knee surgery, cortisone injections and physiotherapy. Despite improvement, our client unfortunately continued to walk with a limp and experience pain in his knee, particularly when kneeling, climbing stairs and crouching. As our client’s work was physical in nature and required activities such as kneeling and crouching, he was unable to return to his previous employment.
When the Serious Injury Team was instructed, an early admission of liability was obtained from the Defendant. In turn, this enabled us to secure interim payments for our client to help support him whilst he was not earning and fund the further surgery he required.
German Law vs English Law
The Defendant was a UK registered company with various offices and branches across the globe.
As the accident happened in Germany, both the jurisdiction of the Courts of England and Wales and the applicable law had to be considered. The risk here was two-fold in that; –
a) the Courts of Germany could have jurisdiction to hear the case rather than the Courts of England and Wales, and;
b) the applicable law for quantification of damages could be German rather than English law.
German law application would have been a less favourable outcome for our client in terms of quantification of damages and the amount of compensation he could recover would have been much lower.
Considering the above risks, a Barrister and German Law Expert were instructed early on in the case and proceedings in the Courts of England and Wales were commenced.
Our client’s case was that the accident was manifestly more closely connected with the UK than with Germany for numerous reasons, including that the Claimant ’s employment with the Defendant was governed by English law and the Defendant supervised the Claimant’s work from the UK.
The Defendant denied that the law applicable to the claim was governed by Article 4 (3) of EU Regulation 864/2007 (‘Rome II’) and was that of England and Wales. Instead they argued that the generally applicable law is the law where such damage occurred, being German law.
At the first Costs and Case Management Conference, we successfully contended that the applicable law issue should be dealt with at a Preliminary Hearing. A determination of the applicable law by which the claim should be governed was an important issue to be determined at an early stage. It meant that disproportionate costs could be avoided early on in the case, once the applicable law had been determined by the court.
In contrast to our position, the Defendant argued that the applicable law issue was one that could be determined without a preliminary hearing and at the same time as causation and quantum. However in the lead up to the Preliminary Hearing, the Defendant finally accepted our position that English law was the applicable law which the claim should be governed by.
This vacated the need for the preliminary trial and allowed the focus to fall upon preparation for trial to deal with the quantification of damages.
We collated all the appropriate records available from both Germany, Portugal (where our client was residing) and the UK and then instructed a number of experts to examine our client and prepare medico-legal reports.
In the lead up to the trial, the Moore Barlow Serious Injury Team entered settlement negotiations with the Defendant. The Defendant’s initial offer was too low to recommend acceptance. Following a round of further discussions, the Defendant accepted our counter offer, which was close to our reasonable best-case scenario, allowing our client to receive a six-figure sum in settlement. As this was a case that the Defendant contended throughout, the settlement was a great result for our client which avoided the need for a trial.
The claim was conducted by Senior Associate, Siobhan Thomas, with the assistance of Associate, Adam Curry and Senior Paralegal, Georgie Beckers. With thanks to Sarah Prager of Counsel, 1 Chancery Lane.
Moore Barlow is here to help those who have suffered a serious injury. If you need to speak with one of our expert personal injury solicitors, please call up on (+44) 0238071 8000 or contact us online.