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In the second of our series of interviews with our Lexis authors, we caught up with Stuart McKechnie QC who is a barrister at 9 Gough Square and general editor and lead author of the APIL Guide to Catastrophic Injury Claims (third edition).
What is your position and what do you do on a day-to-day basis?
I am a QC specialising in catastrophic injury cases. I do both personal injury and clinical negligence. I only represent claimants. Much of my time is spent advising in conference. This is usually with the injured claimant and their family (often at their home) and/or with the expert witnesses instructed, which will normally number double figures in cases of this magnitude. It is critical to be involved from the earliest possible stage to set a strategy for the case, ensure early rehabilitation and address all of the questions that will naturally flow in a case where someone’s life has been torn apart by their injuries. Aside from advising in conference, I will frequently represent claimants at interlocutory court hearings and, on rare occasions, at trial. I will also draft detailed schedules of loss setting out losses/expenses arising from the accident (often into eight figures) and advise in writing on settlement offers or evidence generally.
How long have you been in this role and what brought you here?
Almost exactly 22 years, now. Initially I started as a common law practitioner and cut my teeth in a wide variety of disciplines, including crime, family, property, personal injury and professional negligence. I was in court for much of my professional life, often doing trials, which gave me fantastic advocacy experience. As time went on, I decided to specialise in personal injury and clinical negligence. I was fortunate to have some excellent solicitors working in this field who believed in me and sent me high quality work. I also felt that this area of law played to my strengths, as I have always had a keen interest in people and the interaction between medicine and the law.
Any memorable stories from your career so far?
There have been many, but one perhaps stands out. In EXP v Barker  EWHC 1289 (QB),  All ER (D) 12 (Jun), I was representing a member of the judiciary who had suffered a catastrophic aneurysmal bleed a number of years after a MRI brain scan had been taken and reported as normal. It was the claimant’s case that the scan clearly showed a visible abnormality that should have been identified and treated at the time. The case was defended vigorously to trial and the defence relied on the expert evidence of a very eminent neuro-radiologist, who adopted a position that we found surprising. As a result of cross examination at trial (skilfully carried out by my leader Grahame Aldous QC), it transpired that the defendant and his supportive expert witness had a long and extensive professional and personal connection. It also transpired that the defendant had been responsible for suggesting this expert as a defence witness. None of this had ever been previously disclosed and resulted in the evidence of the expert witness being rejected for lacking impartiality. The defendant subsequently appealed the decision, resulting in the Court of Appeal delivering an even more critical and damning judgment on the conduct of the defendant and his expert (EXP v Barker  EWCA Civ 63,  All ER (D) 12 (Mar)). This has become one of the leading cases on conflict of interest.
What are the key legal developments which are covered in the latest edition of the APIL Guide to Catastrophic Injury Claims?
The book has been thoroughly updated and covers changes to the discount rate as a result of the Civil Liability Act 2018 and relevant case law on quantum. We include a thorough update on the Mental Capacity Act 2005 and also focus on the current uncertainty surrounding accommodation claims resulting from a negative discount rate (which renders Roberts v Johnstone  Q.B. 878 calculations unworkable). We set out the potential ways around this and seek to provide practical advice on how to deal with these claims. We have also included a number of new chapters, including on the Court of Protection, pain management, life expectancy, statutory funding and assistive technology.
What do you predict will be the main developments in this area of the law over the next 12-24 months?
Practitioners will be looking to the Court of Appeal to provide further guidance on accommodation claims when the appeal in Swift v Carpenter  EWHC 2060 (QB),  All ER (D) 43 (Aug) reconvenes in 2020. The current situation is wholly unsatisfactory and is causing significant difficulties in resolving catastrophic injury cases. If the case is destined for the Supreme Court, one can only hope that it is expedited to avoid a further period of uncertainty. In addition to accommodation claims, we wait to see how Brexit impacts on the reasonable security of periodical payment orders (PPO) involving passported EU insurers. This is a huge concern for catastrophically injured claimants who may not be able to settle their cases with a PPO, thus rendering them reliant on lump sum only awards which can be fraught with risk.
What are the main pain points for practitioners undertaking this type of work? How can the APIL Guide to Catastrophic Injury Claims help?
It is essential that practitioners have a clear understanding of the demands involved in running or defending a catastrophic injury claim from start to finish. These cases are time consuming, sensitive and highly complex. There are many things that can go wrong, and the consequences of this happening are likely to be profound. We seek to provide practical advice on how to navigate these potential pitfalls and identify the issues to look out for. We are fortunate to have leading experts in the field of catastrophic injury work providing the benefit of their knowledge and experience to assist in this process. This really is the only definitive guide available on cases of this type and we feel confident that everyone who buys it will benefit.
If you didn’t have a career in the law what would your alternative career be?
Anchor on Match of the Day. I would even be willing to accept a lower salary than Gary Lineker.
The APIL Guide to Catastrophic Injury Claims (third edition) can be found here.
Interviewed by Tom Inchley.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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