Not everything that can be measured counts, and not everything that counts can be measured is an aphorism that describes perfectly why the law is a hopelessly inadequate tool with which to resolve personal injury disputes. People don’t measure an injury by what it is, but by what they’ve lost as a result of it. However, the law will not let you prove that your pint glass is half-empty, only that it contains ten fluid ounces. Any loss you have experienced is therefore not fact but opinion, the description of which is at the mercy of interpretation, agenda and politics. It’s a game of Chance for those who prosecute, Risk for those who defend and Patience for those caught up in it. And now for us, it’s finally over.
It has been almost six years since Barbara had the accident that caused so much upheaval and change in our lives, and the legal action which followed has been casting a shadow over us ever since. As the claimant in a David vs. Goliath case, we were individuals prosecuting an injustice against a complex web of corporations mostly worried about their mistake setting a costly precedent, and this meant that it was more convenient for them to consider her a criminal than a victim. Everyone else mentioned in this book enjoys the privacy of a pseudonym, so it would not be fair for me to deny the defendants in this case, her former employers, the same courtesy. I’ll therefore refer to them as Eye Screw You and Cocks, best described as Broadcorping Castrations and both controlled by the same multinational parent company, News Crap.
The accident was caused by a well-connected builder with a track record of profit-driven carelessness. He had the job of renovating several parts of a busy office space where some one hundred and fifty people worked. They were liberally equipped with floorboxes; those essential bits of office architecture that have made extension cords a thing of the past, and a number of these needed updating that were sited just inches from a busy walkway along which people constantly passed.
The builder needed access to the wiring that ran between each of the floorboxes, and so he removed them, thereby exposing a series of foot-deep cavities. As his main concern was maximising profit by making the job as simple as possible, he paid no attention to the fact that he had left deep holes in the floor right where a great number of people constantly walked. When later asked why he had not placed any barriers or warning signs around the holes, he stated that they would have hindered his progress. He was responsible for a total of five accidents in Barbara’s office, hers being the second, and despite assurances that he would no longer be used; his continued presence was a sign of things to come.
It was only a matter of hours before someone had the accident that was waiting to happen, and at lunchtime on Wednesday October 15th 2008, it was Barbara who fulfilled this particular destiny. In a scene later described by a witness as something out of a Charlie Chaplin film, she was crossing the room, had turned to her left to answer a colleague who had called out as she passed, and stepped neatly into a hole. A second was all it took for her to collapse to the ground, the pain-free and mobile chapter of her life closing as she landed. What has followed since is a story of medical intrigue on the one hand, and some impossibly nasty legal footwork on the other.
The legal story is as simple to explain as it has been frustrating to witness: there was no health & safety policy in the building where the accident took place, let alone anyone to enforce it. They knew they had no leg to stand on, and admitted liability very quickly. What they have proceeded to do in the years since is comb through Barbara’s medical history from the day she was born in an attempt to avoid responsibility by arguing that the condition her foot was left in is acceptable, and would have occurred naturally in any event. It’s rather like mitigating the act of shooting someone by citing the inevitability of death.
Not content with their lawyers’ artful sophistry in defining what the length of a piece of string isn’t, Cocks also subjected Barbara to a generous amount of bullying during the time she remained trapped in their employ after the accident. Frequent impromptu meetings with the heads of Legal and Human Resources piled pressure upon veiled threat, the particularly vile cherry on the cake being to force her, against her will and despite her many protestations, to become responsible for health and safety for all one hundred and fifty employees. In this position she was directly and overtly undermined by none less than the Managing Director from the very first day, while the builder continued leaving a trail of destruction behind him. This was the coup de grace that led to her breakdown which drove us from our life and home in London.
It would seem that a corporate culture, if it is to be effective, must first successfully permeate it thoroughly. To then thrive it should either be virtuous or vicious; bland and inoffensive being too vague to appeal to any side of human nature that would give it lasting momentum. Since 2010 it has been publicly revealed that the corporate culture of News Crap has been completely rotten for quite some time; ethics taking their place far behind profits, and confidentiality applying only to their own underhand activities. Indeed, corporate culture can cause the blindness that allows people without power or influence to be regarded as nothing but pawns bearing little losses and net profits. Just ask Sally and Bob Dowler.
The medical story has been more complex simply due to the fact that Barbara has an unusual mixture of pre-existing conditions. She is hyper-mobile and also has flat feet. Up until the accident, these had been easily manageable conditions, but when combined with the damage caused by the fall, they have proved a devastating cocktail.
After their best efforts, the medical experts concluded that the damage is too great for her foot to return to anything approximating its previous condition. After the equally sterling efforts of the legal experts, there now exists a new interpretation of the Eggshell Skull principle, the legal precedent which states a victim must be taken as found, from which Barbara is strangely excluded. Despite numerous requests to explain this, we are still none the wiser. Talk about being caught between a rock and a hard place.
Barbara had her first operation in 2009, at which time her employer’s insurance agreed to underwrite the cost of getting the doyenne of orthopaedic surgeons to carry out a procedure to rebuild her foot. Unfortunately the operation was not successful, but it took six month’s of pestering and being accused of being a malinger to be granted the funds for the scan that would prove this. Arguing against one of the country’s top experts is not an easy task, and it was during this time that the combination of physical pain, emotional stress and lack of consideration and support at work finally tipped Barbara over the edge.
Now no longer able to commute by public transport and in urgent need of further surgery, we took the decision to leave London, and her second operation was carried out in 2010 after we had moved to The Cotswolds. Unfortunately both her former employer and the health insurance company with whom she had a policy refused point blank to meet the cost of this surgery, and so they fell to us exhausting our life savings in the process. Luckily the operation this time was a success, but it revealed the growing extent of the arthritis that was caused by the accident and subsequent surgeries.
Barbara’s third operation was carried out successfully by her new doctor at the end of July 2012. He removed some of the metalwork from previous operations, which means that once more she can use orthotics to reposition and support her feet inside shoes. He also removed a good deal of scar tissue that had been aggravating the pain, and he noticed first hand the growing extent of her arthritis. In his words, he and Barbara will become ‘great friends’ over the coming years as she hobbles inexorably towards a full foot fusion operation.
American author Upton Sinclair once noted; “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.” We have found this observation to be remarkably astute; having battled now for years with experts on all sides who have misrepresented us through a potent and cavalier mix of carelessness, closed ranks and expediency. We have been prevented from challenging these inaccuracies by our own legal team; professional egos and future relationships being considered a more valuable commodity than factual accuracy.
In the run-up to the summer of 2013, new statements from Barbara’s former managers written four and a half years after the event materialised. Containing lies ranging from the vague and artful omission to the malicious and outrageous commission, we were once again faced with a series of unpleasant meetings. Due solely to Barbara’s meticulous record keeping, we were able to submit paperwork that disproved many of them.
With all evidence submitted and exchanged, a Joint Settlement Meeting was held in October 2013. This is a legal ritual where both parties agree to go on a date, say they want a sure thing, and expect the other to bend over first. Predictably, it started out in a rather pedestrian manner in which the gulf between the two sides was clearly articulated, and we all waited for the music to start. It quickly took a turn towards the bizarre, as rather than stepping out to dance, ESY’s legal team quickly made a final offer that was less than the total amount we had already spent. When it was refused, they sidestepped legal process and pressed a DVD into our barrister’s hands. Neither Barbara nor I were surprised, as for years we had been aware of being followed and had seen on numerous occasions people standing on step ladders taking photos of us over our hedge with paparazzi-style lenses. We had pleaded for it to stop many times, but been told bluntly that we would have to prove it was covert surveillance and not earnest bird watchers. Some of those who work for G4S must be very keen ornithologists indeed.
We were ushered into a mini-cinema by a very worried looking legal team who were itching to capitulate, and Barbara and I had a very real sense of carpet being pulled from under our feet. The timing and delivery of the package had evidently been a dramatic bluff calculated to force us into submission before the video could be played, as the best of the footage they chose from all that was available provided nothing but proof that we had been telling the truth.
From the failure of this meeting, a court date was agreed for the following April, and both sides retired to prepare. In January 2014, ESY unexpectedly made an application to submit to the court the video evidence with which they had tried to persuade us to settle three months previously, but which they had oddly never sought permission to use formally in the fourteen months since it was filmed. As they had already shot their bolt at the Joint Settlement Meeting, a failure to submit it would have been an admission of its flimsiness, and the only way to get any value from it was to try to delay the court date. On March 17th the judge ruled that he could not deny the video evidence but would not let the trial date slip. No problem; see you next tuesday in court, or so we thought.
The stark truth is that the truth never has and never really will matter to anyone but us. From the start, this case was riddled with shoddy work, inaccuracy and the aroma of deals being done; something which we could neither fathom nor effectively challenge. A number of years ago, when Barbara and I realised how big a lie the phrase “my duty is to the court” is, we began to record and document our meetings, the submitted transcripts of which prove instances of false testimony. Despite this, our barrister changed his tune completely after the final meeting in what was a breath-taking display of duplicity. Concerns of ours about the accuracy of experts’ statements from three years ago that were pooh-poohed at the time were suddenly repackaged as critical, and what he once considered strong and compelling evidence was now rebranded as weak and inconclusive. For whatever reason, his faith in our case had evaporated and his recommendation was that we should timidly submit an offer but ultimately accept whatever the defendants put on the table. With hindsight it seems clear that this had been his intention all along.
One of the conditions of no win no fee trials is that you must take out insurance against losing, which seems perfectly sensible. Less well known is that should your barrister either get cold feet or want to recommend an out-of-court settlement despite your wishes, your insurance immediately becomes invalid, and that is a loaded gun held to your head with a weak smile. With our hands tied we were left with no choice, and our long game of Patience was over. We folded on the afternoon of Tuesday, April 1st 2014, having been played like fools for years.
Barbara will need further treatment and operations for the rest of her life. She will never be free of pain and will never have more than rudimentary mobility, which itself in time will require aids of one kind or another. Gone are the long walks, nights of dancing and island hopping holidays of yesteryear. Instead she faces a life spent primarily at home whilst those responsible congratulate themselves behind the protective legal cloak of a morally bankrupt corporation. We feel and consider that we lost the case, and that the last five and a half years were a waste of time.
Barbara was awarded less than we had been told she might reasonably expect and was robbed of the chance to tell her story in court. Although we knew justice was not possible and a sense of vindication was unlikely, we had wanted to see the whites of their eyes and hold out for at least a degree of fairness. The practise of law, having absolutely nothing to do with truth or evidence, sadly makes no provision for any of that.
I shall probably forever rue the fact that I couldn’t persuade all the experts concerned with this case to put their egos to one side, and realise that what they spent 1,995 days pushing around their desks was never actually a dispute, but some of the best years of Barbara’s life. I’ll also continue to relish the thought of five minutes in a quiet room with a few of her former work colleagues to personally thank them for inventing details that never happened whilst denying a few that did. And for the octogenarian who claws to preserve the reputation of his empire through hollow public contrition, corporate gerrymandering and all the sound and fury he can muster; I’d like to give him the right hook his ex-wife once used to protect him.
For each one, I wish the opportunity to measure for themselves the pain and limitation she lives with by enduring just one day of it. Then they’ll know exactly how much mobility counts.
Our marriage and family relationships have been under immense strain for many years, and it’s now time to stop feeding the wolf of anger, disgust and resentment so we can finally move on. We feel immense gratitude and love for those who have supported us through all the tears and pain, and will forever remember the kindness, consideration and sympathy we received. We appreciate that many will want to know how the case concluded and we hope that this letter adequately charts our journey from the start, leaving you with a picture of how our world now looks at the end. There is nothing more we can or want to say.