Settling out of court?

[Jordyn86]

My DF was treated for lung cancer 4 years ago.
Although he was 84 at the time he was very very fit and healthy.
We were worried at first that they wouldn't operate due to his age but the doctors said he was so healthy it was the best option.

The operation was successful but it affected him badly. He couldn't eat and became very depressed.
We literally thought we would lose him a number of times and the doctors wanted to put him on end of life treatment.
My DM cared for him so well and we slowly got him back to life.

The cancer was caused by asbestosis and my parents started the long legal process of suing the companies that he had worked for.

They advised my DD that he could expect £80k - £100k.
He has just received an offer of £48k which the solicitor said was low and could try and get £52k.

Reading between the lines it seems like because of my DF age, there is an expectancy that he won't have many years left so will not need as much money for his care. The cancer has a 50/50 chance of returning and this is a final offer to close everything so if it returned he couldn't go back to try for more money.

My DF has since been diagnosed with early Alzheimer's and Dementia.
The doctor said the shock of the operation could have caused it. My DM is doing a wonderful job looking after him but she is obviously getting on herself now and is worried about the future.

As I said my DF is a very strong man, his own mother was 100 when she passed so there is a good chance he has another 10years aged of him (God willing).

The solicitor has advised my parents that if it goes to court they could possibly be awarded a lot less.

My parents really don't want to go to court because it's so stressful. We are aware that the defendant's would have to pay a lot more money in legal fees if it went to court so they would obviously like to settle.

It just seems a bit unfair that they have offered so little, I would say that the operation changed my DF completely.

But should they accept or take the risk of threatening court to try and get more?

The solicitor is advising they accept.

Any advice would be greatly appreciated.

Sorry for the length of my post.

@Jordyn86 I am so sorry for what your family have gone through.

Realistically no amount of money will be adequate compensation.

Your solicitor has all the facts and has advised you to settle. My advice is listen to the expert and settle.

Thank you @Propertylover

As I said my parents do not want to go to court. But is it worth the threat of going to try and get more money?
They are worried if they do the defendants may call their bluff.

We got a massive claim after a road traffic accident, but this did have a lot of work of on our part in predicting what the cost of care travel cars and everything would be for the next 10 years because of the injury. They did say you could go to court and get more but it wasn’t worth a hassle. In the end we went to a solicitors firm with the insurer is in one room and as another and somebody going between the two

Do not take the first offer

Presumably you have a solicitor?

In our case, the solicitor instructor the barrister before we got to the law firm two room situation

Sorry to keep popping back. Have you actually investigated how much care would be whether at home or in a care home

Thank you @Tescovalu

They have rejected the first offer but solicitor said that he thinks he can get another £4k which doesn't seem a lot more?

Going to court would surely cost a lot more than £4k?
It seems like the solicitors just want to wrap it up now.

My parents have been through so much and it feels like my DFs last years have been ruined by this operation.

Take the money and use it to make life easier for your dad and mum.
The stress will not be good for either of them.

Yes do you go to the meetings with the solicitors? I wonder if your parents are being demanding enough. I would get a spreadsheet like my husband did and make a massive spreadsheet of all the cost for example going on holiday and all the different transport arrangements you might have to have with a wheelchair or valet parking or adapted accommodation. Also find out a nice care home near you and work out how much that is a year or work out how much a Home helpers and put it all into a big spreadsheet.

Our barrister was stunned by this and when he went with the spreadsheet to the terrible insurance company, who initially offered something like £30,000 for the loss of a limb this stunned them

It won’t if it’s not enough money though, will it?

Oh okay, I’ve sent you a message

I'm sorry op for you all.

I would arrange a meeting with the solicitor and your family and ask them to explain it step by step to you.

The legal action is for the cancer caused by the asbestos, if I read correctly? So the damage caused by the operation may be a separate matter.

For example, there may, or may not, be caselaw which indicates the average pay out for an individual that age for that diagnosis.

How that person responds to the treatment or medical intervention may not be seen to be part of that initial claim.

Do you think there was medical negligence in addition? Should the operation have gone ahead? Were the possible side effects explained?

I do think you need to sit down and take it stage by stage with the solicitor who has all the facts and understand why they have reached the view they have.

The solicitor has advised my parents that if it goes to court they could possibly be awarded a lot less.

The solicitor is advising they accept.

from the first post.

Unfortunately in cases like this it's hard to quantify the upset, the undefined damage and the ifs and maybes even though it is clear that his life has of course been so badly affected.

Looking at it now in black and white there's an argument that his recent diagnoses will affect his future and how much care he needs, and there is no proof that this stems from the asbestos ultimately. So I think this puts you in a weaker position.

We had to abandon a medical negligence claim because even though the NHS admitted faults and negligent care we couldn't prove 100% that their negligence had caused the problems being experienced - even though everyone in the room was 99% sure that was the case.

The stress of going to court and the risk that it may well be twisted against you don't seem worth it.

They are saying because my DF is 89 that he doesn't need as much as he probably doesn't have long left.
It doesn't really account for all the pain and suffering the solicitor said but more about how much care he will need.

The cancer has gone but has a 50/50 chance of coming back.
He could live another 10years so it just doesn't seem enough for his care.

Even if he did pass away before, his quality of life has been reduced and my poor DM has to look after him.

@Jordyn86 I am going to be straight with you if your Dad was 84 four years ago he is now 89. The questions you as a family have to ask are if you go to court what will it cost you:

• unless you have a court date it could take years before it gets to court. That is years the case hanging over you all, the stress etc. when your Dad’s health is deteriorating.
• How much time will the case take you, your mum etc away from spending time with your Dad?
• what happens if the court decides a lower amount - how will you all feel?
• will you be liable for costs if the court decides a lower amount? If so this could be way more than the award.
• (Sorry) What happens if your Dad sadly dies before it gets to court? Do you get anything? How will you feel if you missed spending time with him?

I know you were given an idea it would be c£80-100k but honestly if you can get £52k and close the case you can then spend time focusing on your Dad rather than on solicitors letters and court.

I am going to say it again, no amount of money in the world will ever be enough to reverse what happened to your Dad. It is awful he, and you all, have gone through this but the reality is you need to focus on what is best for your Dad now.

Thank you for all your replies.

No we do t think there was medical negligence at all. The operation was successful, it was just the shock of the operation that made him so very ill.

They removed half of his lung. He can breath ok but the mental effect is on going. But we do realise this is difficult to prove that it came from the operation.

It just seems unfair that because of his age he isn't entitled to more .

Thank you @Propertylover

We definitley do not want this to go to court.

We rejected the first offer and the solicitor is coming back next week with a 2nd offer.
The extra money is way way less than what it would cost the defendant if we went to court.

My question is, should we reject the second offer with threat of court?
We are worried if we do that they will call our bluff and go to court.
This is something we do not want to do but obviously we want to push for as much as we can.

A preliminary hearing scheduled for 2 weeks time. Which we don't have to attend.

You will need to check with your solicitorif the offer is made under part 36 of the CPR you are gambling that you will receive more than this if it goes to court - if not, the normal costs rules are reversed and you would be liable for their costs. This could potentially exceed the compensation payout.

Can you arrange a meeting with the solicitor for them to talk you through how this has been calculated and what your chances of success are likely to be if you go to court, plus the risks if you lose?

Thank you @onemoremile

We do not want this to go to court at all. We do not want to take that risk.

I am asking if we reject the second offer of only a few thousand more are they likely to come back with a third offer or will they go to court?

As I said going to court is not something we want or are willing to do.

@Jordyn86 no one can answer what the other side will do.

I know no one can answer that but I'm just looking for opinions. Especially if someone has been in the same/similar situation?

Or any legal experts that have experience of this type of thing?

Remember, the longer they keep it going, the more the lawyers on your side and theirs will make out of it. You may get a revised offer but it may be swallowed up in legal costs in negotiations to get it. Personally, I’d cut and run.
If it goes to court you’ll be left with very little of it at all.

If the second offer is only a few thousand more, it is unlikely that they'll come back with a significant improvement in the offer without some real incentive to do so such as compelling further evidence or the start of court proceedings but from that point your costs will really ratchet up.