A frustrating challenge for personal injury lawyers pursuing RTA claims against defendant drivers and their insurers can be the reluctance from police to share evidence collected to support any criminal proceedings.
A common response is that they will only provide documents pertinent to the civil claim once criminal proceedings are finalised. For many claimants that is simply too late.
At a recent event at Fieldfisher's London office, with an audience predominantly of police officers, forensic investigator and former police officer Mark Crouch delivered the important takeaway that 'civil doesn't start at the end of the criminal case, civil starts day one.'
It is common knowledge now that early rehabilitation, particularly for those brain injured, is vital to getting a claimant back as far as possible to their previous life. It can make the difference between living a fulfilling life and not, and that life pretty much depends on accessing funds for private rehabilitation after the NHS has done the early trauma recovery work.
This is particularly true for brain injury where intense multidisciplinary rehabilitation support is often required as early as possible to maximise any potential recovery.
The problem is that however brilliantly the NHS trauma teams perform the emergency medicine - fixing the broken bits, stopping the bleeding, basically saving someone's life - the last piece of care, the months and months of intense rehabilitation, isn't available in the NHS because of lack of resources.
Speaking at the event, Ross Davenport, consultant surgeon at the Royal London's NHS Major Trauma Centre left no doubt that without the intensity of private rehabilitation, he cannot get his patients back to their families in any way resembling who they were before the incident.
For the 3,187 trauma patients Ross and team treated at the Royal London in 2017 there were eight rehab beds available, despite each patient needing roughly six to eight weeks of immediate rehabilitation.
So, the only option, once their life threatening injuries are fixed, is to repatriate them back to their local hospital or trauma unit where there are often fewer specialist resources available.
According to Ross, what happens when you don't access acute rehab early is that mobility falls. You spend longer in hospital and complications start to build. Muscles waste, infections and blood clots, become more likely and overall the length of stay increases, which further impacts the NHS.
Even though civil claims are much more collaborative than in the past, with both sides sitting down early to negotiate the way forward, accessing funds from the defendant obviously depends on determining factors such as primary liability and contributory negligence, and those discussions will be informed by evidence from the scene.
Also speaking at the event, Steve Snowden KC said that the criminal and civil teams are both on the same side of the judicial system and that the police are not entitled to hide documents over supposed concerns of 'unfair advantage' to one side, since anything relevant given to one party automatically goes to the other side.
Concerns over confidentiality are similarly not valid reasons to withhold evidence from crash investigators working for the civil team, as Crouch explained: ' We are bound by the same confidentiality guidance as the police. You can't disclose something to us and we sell it to the Daily Mail. That's not what happens.'
The emphasis of Mark's presentation was on the importance of preserving the integrity and authenticity of forensic evidence by not inadvertently rendering it admissible through over-compression, and other methods of handling data. The message is that evidence helps the litigation team and their experts get the right answers quicker, so that that can properly focus on the Claimant and their needs.
Ross and his team at the Royal London treated a client who was catastrophically injured in a road traffic accident on the M1 when a minibus he and some friends were travelling to a university sporting event. He was high functioning young man who had been studying for a Master's at the time of the collision that left some of his friends dead. My colleague Jennifer Kelly writes elsewhere in this issue about the cross border legal work the claim entailed after the man went back to India mid claim.
The young man suffered life threatening injury to his leg, as well as a brain injury and severe injury to his thorax. Ross' team saved his leg and operated on his other broken leg. The complications he was left with were a foot drop due to nerve injury and a quite profound psychological and neurocognitive dysfunction as a result of the brain injury. This had a profound impact on his ability to function normally.
He spent a month in the Royal London trauma centre and was then sent home effectively with no rehab. What happened next was that he basically sat in his room, completely house-bound, unable to mobilise, and isolated from his social life, with just his family around him. His condition started to go backwards.
His Personal Injury team negotiated with the defendant insurer to provide immediate interim payments to fund an intensive inpatient stay backed up by multidisciplinary rehab in the community, plus access to expertise in other surgical disciplines, vital to start chipping away at the more challenging aspects of restoring higher executive function and getting his neurocognition back to normal so he could complete his MBA and get back to a functioning life.
Happily it's a case Ross describes as 'a great success story' and it was only possible through private rehab.
Mark ended his talk with a personal plea to the officers in the room who go out first to serious personal injury crash sites:
'Even if it isn't a fatal collision, or when you arrive you get an update from the hospital that the victim is ok, please, please, jump out the van, please take some photographs. Please take a couple of scans - even though it's more admin for you back at the station, more forms to fill in – because, as we've seen, five minutes of your time can have an incredible impact on the victim when it comes to their civil case.
As he said earlier, 'Civil starts day one'.
With thanks to Ross Davenport, consultant trauma and vascular surgeon at the Royal London Major Trauma Centre, Bart’s Health NHS Trust.
Mark Crouch, head of collision investigations at FCIR
Steven Snowden KC, 12 KBW
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