At 60mph, I’d have been able to stop before the collision. I don’t have any memory of the collision, but I know I don’t hang around. I have followed both my solicitor’s and barrister’s advice. The dilemma I have is this: my injuries might mean a lower-leg amputation in the future.

The risk is about 5% according to my treating surgeon. However, he has only said this to me; he won’t do a full medicolegal report for me. My medicolegal surgeon is totally against any amputation and says there is no risk of an amputation. The Defence has now made an offer which both my barrister and solicitor say I am really unlikely to beat at court but there is nothing in it for the risk of an amputation.

Do you have any solutions for me?


Your barrister happens to be one of the leading King’s Counsel in this field of law and his advice is precise and, perhaps, brutal but it is written for your solicitor and the legal-expenses insurer. But his advice is correct. There is a very decent offer on the table, about 10% or 15% above a likely courtroom outcome. I think the reason it is unusually generous is because the insurers want to buy off the risk of future complications and put an end to the case and the costs of it. It is a sensible strategy to make an offer no reasonable lawyer would advise refusal of, early in a case.

I can see from the medical reports that your treating surgeon’s concerns have been put to the reporting surgeon and while he is not quite dismissive of them, he says amputation is not a real risk. Because your own surgeon says this, one solution is pretty well out of the picture for you.

There is a process called provisional damages which means the court will hear your case and make an award for your badly-mangled but still-existent leg but will hold the case open for a period for the risk of amputation. The judge will decide the period but you have one big hurdle to get over. You need to show there is a real risk of amputation and your reporting surgeon, an orthopaedics professor, says there is no such risk.

I suspect the court would not be sympathetic to swapping an expert. The courts call this ‘expert shopping’ and judges hate it.

Your options are pretty limited. You can either continue the case, and pay your solicitors and barrister privately and see if your own surgeon is correct. However, even if he is correct, he is saying you have a 1 in 20 chance of an amputation. You cannot swap out your medical expert without permission from the court. I suspect the court would not be sympathetic to swapping an expert. The courts call this ‘expert shopping’ and judges hate it.

Your treating surgeon is forbidden by both his own professional rules and by firm resistance from the judges to writing a medicolegal report on his own patient. I personally would follow the advice from your solicitor and barrister. It might turn out to be wrong and if you have an amputation in the future, it will be a risk you carry. The alternative is you press on, funding the case yourself and get to trial in about a year and a half. The judge will have to ask him or herself: “is there a material risk of amputation” and your fear from your surgeon is not going to persuade a judge who can only hear expert evidence from the medicolegal professor.

I understand your question (and your fear about making the wrong decision) but no-one can eliminate all risk, even a potentially life-changing risk like this. I would follow the legal advice you have, albeit nervously. It is tough call and must be eating you up.

Andrew Dalton

RiDE Magazine April 2023