Cross-border orthopaedic claims – a case study.

Our client, R, was a 10-year-old French child on a ski holiday in France with her family when she was struck while skiing by a ski lost by another skier. The collision made her fall and hit a post, causing her to suffer serious orthopaedic injuries, including a complex fracture in her upper leg (femoral fracture).

Due to the claimant’s age, unfortunately, her complex femoral fracture had an adverse effect on the growth of her femur. As a result, she had to undergo bone lengthening surgery using a nail, endured some failed attempts and complications. Overall, she underwent eight operations between the ages of 10 and 17. During her teenage years, she spent much of her time in hospital, recovering between surgeries, relying on crutches, and attending physiotherapy. She also developed a phobia of hospitals and anaesthesia.

Thankfully, as a young adult, R’s injuries have stabilised with relatively minimal permanent impairment.

The defendant skier and his insurer denied liability for the accident throughout the claims process, compelling R to issue court proceedings. A few weeks before the four-day trial in the High Court of Justice (and more than 16 years after her accident) the defendant finally engaged into settlement discussions.

Maud Lepez, who is dual qualified as solicitor of England & Wales and French avocate, assisted R and her parents in securing a global compensation of over £150,000 for:

• the main victim’s injuries and losses, including her pain and suffering (physical and psychological), functional impairment, cosmetic damage, loss of amenity and financial losses
• her parents as secondary victims, in respect of their affection loss, disruption in living conditions and financial expenses incurred during R’s recovery.

As her accident had happened in France, French law applied to R’s claim. The defendant skier was domiciled in the UK and was insured by an English travel insurer. Therefore, the claim was pursued in the English jurisdiction. This cross-border element meant that a number of unusual issues arose which added a significant level of complexity to the claim:

Under French law, the claimant was not required to prove fault or negligence on the part of the defendant skier as it would be required in English and Welsh Law. Instead, it was sufficient to demonstrate that the claimant suffered injury as a result of being hit by a ‘thing’ that was in the custody and control of the other party; in this case the defendant’s ski.
English insurers, solicitors and courts are not accustomed to foreign, especially no-fault, liability regimes. In this particular case, this meant that the defendant skier first attempted to defend himself on the basis that he had not been negligent or at fault when he fell and lost his ski. But this was not the point: the simple factual connection between the defendant’s ski and the claimant’s fall and injuries was sufficient for the claimant to be entitled to compensation.

The defendant and his insurer also argued that:

• there was no collision between his ski and the claimant (suggesting that she fell, coincidentally, just a few seconds after he did);
• even if there was, then the claimant had contributed to her accident and her right to compensation should be reduced.

In English civil procedure, when the court is required to apply foreign law (in most cases, the law of the country where the accident happened), the parties must produce evidence as to the contents of the foreign law, by way of experts’ reports. In this case, both the claimant on the one hand and the defendant on the other hand instructed French law experts and relied on their reports. In addition, the claimant relied on four witnesses of fact (including herself), while the defendant served the statement of one witness in addition to his own.

Liability was therefore a long battle in this case, but the claimants were well advised by Maud Lepez, a Partner in RWK Goodman’s London personal injury team, who is also a qualified French avocate and was confident from the outset of the chances of success of the claim, way before instructing a French law expert in line with the court’s directions.

Given the claimant’s injuries, medical expert evidence was required in support of her claim in the fields of:

• Orthopaedics (to report on the unusually long rehabilitation period, the type of surgeries performed, the pain and suffering endured, and some ongoing relatively minor restrictions)
• Psychology (to deal with the issues of hospital phobia and image/self-esteem due to extensive scaring)

Furthermore, under French law, the assessment of damages in injury claims is very different from English law and quite technical. It requires the input from a French medico-legal expert to determine a number of criteria, such as:

• the level and periods of temporary functional impairment
• the level of physical and psychological pain and suffering, on a scale from zero to seven;
• the level of cosmetic damage (temporary and permanent) on a scale from zero to seven;
• the ‘consolidation date’, or date by which the injuries have stabilised to the extent that no further treatment is required, save to avoid a deterioration;
• the percentage of permanent functional impairment;
• whether the victim suffered from a loss of amenity (or ability to practice certain sports or leisure activities), a sexual damage, an adverse impact on their working ability etc.

Those so-called medicolegal conclusions are not known to English medical experts. Hence the added requirement in the present case to adduce as evidence before the court the desktop report of a French medicolegal expert to ‘transpose’ the English medical experts’ findings into those criteria.

Then again, reports from French law experts (on both sides) were required to provide evidence to the court as to the methods of assessment of damages and their quantification. The reports also dealt with the entitlement by R’s parents to bring claims as secondary victims, for their own losses, which is another significant different with English law (the parents would not have been entitled to damages, had English law applied to this claim).

Maud Lepez, our dual qualified lawyer, had anticipated what the claimant and her parents could claim and called upon her network of experts (medicolegal and French law experts) to bring the best evidence before the court.

Cross-border injury claims present significant challenges, in terms of applicable law, jurisdiction, liability, assessment of damages and also practicalities in progressing the claim (language barrier, organising experts’ assessments in another country).

Our specialist travel law and international injury team is well-equipped to handle complex cross-border accidents and ensure clients receive the compensation they deserve.