Personal injury and clinical negligence law: area of practice (barristers)
A personal injury and clinical negligence practice involves claims for damages arising out of injuries sustained as a result of another person or institution’s negligence. It involves consideration of whether that person or institution owed a duty of care to the individual, whether that duty of care was breached, and what damages may be recovered.
A barrister’s work: acting for claimants and defendants
Cases vary depending on the size of the claim, whether liability is in dispute and whether the barrister is representing the claimant or the defendant. If acting for a claimant, the client will be an individual (ie not a company) who has suffered a physical or psychiatric injury. If acting for a defendant, the client will generally be an insurance company, an NHS trust or a government department.
A barrister in this area of practice will have a high number of cases on the go at any one time. Most take a number of years to reach a conclusion (the higher the value of claim, the longer it usually takes), and the barrister gets involved at different stages of the litigation. Barristers typically advise on whether to begin proceedings, draft pleadings if a settlement cannot be reached pre-action, ask questions of the expert witnesses (mainly medical experts), represent the client at interlocutory hearings or in settlement negotiations and, if all else fails, represent the client at trial. In other cases, a solicitor might do all the work right up until trial and only instruct a barrister for the final hearing. Cases are usually tried at county courts or the High Court.
Personal injury and clinical negligence barristers in court
In the first few years of practice, it’s not uncommon to be in court four or five days per week dealing with small claims hearings arising out of, for example, minor road traffic accidents. Time spent in court decreases with seniority; higher value cases often don’t go all the way to trial, so advocacy work may be limited. I’m in court an average of one or two days a week; some weeks I may have a trial lasting a few days, other weeks I’m not in court at all.
The hours of a personal injury and clinical negligence barrister are long (typically, 55 hours per week), but they’re generally predictable. It’s rare to get instructions the night before a hearing so it’s possible to plan work (and social) commitments in advance.
Personal injury litigation attracts a considerable amount of media attention and much of it is negative or inaccurate. It will be interesting to see whether government suggestions to ‘clamp down on the health and safety culture’ lead to any substantive reforms. Changes to the funding of personal injury claims are imminent; the likely consequences are unclear, but in some cases (particularly with low value claims) would-be claimants may find it more difficult to secure representation. Aspiring pupils in this area should be aware of the employer’s liability ‘trigger litigation’ currently going through the Supreme Court; this may have a considerable impact on future mesothelioma (a form of cancer often caused by asbestos exposure) claims.
Is personal injury law recession-proof?
Personal injury and clinical negligence practice is holding up well: people are always going to have accidents and, sadly, clinicians are always going to make mistakes. Almost all cases are privately funded, so legal aid reforms are unlikely to have much effect on this area.
Pupils tend to work regular hours, usually about 8.00 am–7.00 pm. They will draft written advices, get involved in settling pleadings, draft questions to experts and conduct legal research. In their second six they will have the opportunity to undertake plenty of their own court work, such as trials arising out of car park collisions or applications for the approval of a settlement on behalf of a child.
Types of law practised
Essential skills for personal injury barristers
- Compassion and sensitivity.
- Analytical brainpower and an eye for relevant information.
- An ability to take the rough with the smooth.
- Good advocacy, drafting and teamworking skills.
HELEN WOLSTENHOLME is a barrister at TWO TEMPLE GARDENS. She studied law at Oxford University and was called to the Bar in 2002.