Derek O'Sullivan KC

Personal Injury

“A master tactician and strategic thinker who is always on his game. The depth and breadth of his knowledge across a wide range of issues is second to none”. Chambers and Partners

Catastrophic Injury Claims

Derek’s practice concentrates on cases where claimants have been catastrophically injured. He has a particular expertise in relation to brain injury cases- not only cases of severe traumatic brain injury but also “subtle” brain injury cases and cases involving cumulative causes-and spinal injury cases. He is also regularly instructed in catastrophic spinal injury and amputation cases. Derek is familiar with all elements of catastrophic injury cases and is used to leading a team (including extensive medical expert evidence) defending very high value claims.

Occupier’s Liability Claims

Derek has acted in a very considerable number of occupier’s liability claims with the cases dealt with including:-

• Liability of the occupiers of woodlands, nature reserves, holiday parks and historic monuments
• Liability of domestic householders in relation to the 1957 Act
• Liability of the occupiers of commercial premises (both to visitors and persons attending in the course of their employment) in relation to the 1957 Act.
• Liability of occupiers (both domestic and commercial) in relation to claims by trespassers under the 1984 Act.

Road Traffic Accidents

Derek has conducted many cases arising from road traffic accidents and has particular expertise in the interpretation, understanding and challenging of accident reconstruction evidence. Recent cases taken to trial include: Farah v Abdullahi & 5 Ors [2020] EWHC 825, QBD; a case that involved multiple tortfeasors and insurers as well issues including the cause(s) of the claimant’s extensive brain injury, novus actus interveniens and divisibility of injury, as well as Barrow v Merrett [2021] EWHC 792 (QB) and Arkelaos v Phillips [2021] EWHC 2321 (QB): both cases where the defendant driver was absolved of any liability following a collision with a child running into the road ahead of them.

Employer’s Liability Claims

Derek has extensive experience of acting for defendants in EL claims; in particular he has extensive experience of acting in multi-defendant cases involving accidents on construction sites. A recent case taken to trial was Harris v Bartrum [2020] EWHC 900 (QB): the employer was found not liable to the employee who suffered catastrophic injury when the articulated lorry and trailer which he had been employed to drive rolled over him.

Rail Claims

For many years Derek has acted for rail companies in relation to claims by passengers, trespassers and claims by injured employees. He is also instructed by Network Rail. He is familiar with the issues in rail claims (including CAHA) and has a good knowledge of the relevant Master Rule books and Railway Standards. His most recent trial acting in relation to a railway accident involved Derek acting for a train operating company being sued by a passenger after an accident in which the passenger suffered a bilateral amputation after falling between a platform and a moving train: Robinson v Greater Anglian Railways [2018] EWHC 272 (QB). This was an important decision as the claimant sought (unsuccessfully) to argue that the overall safety of train despatch systems on the rail network was unacceptable. Following this Derek acted for Network Rail/GWR in relation to a claim by a passenger who fell down an escalator at the newly modified Reading Station (thereby suffering a catastrophic spinal injury): Snell v Network Rail (2018, QBD; claim discontinued prior to trial). Currently Derek is acting for a number of rail industry parties, including being instructed in the claims arising from the New Cumnock Derailment as well as by the Defendant in Martin-Shea v DB Cargo Limited (QBD, Newcastle DR): a case involving a child trespasser who suffered catastrophic injury when coming into contact with the overhead electric line at the Tyne Yard (as a result of climbing onto a wagon of a train awaiting departure).

Sports Law/Sports Club Claims

As a keen sportsman Derek has always had an interest in sports law cases and has had frequent instructions over the years, having acted in a number of cases, including: negligent tackle claims (football and rugby) assault claims (football, rugby and ice hockey) catastrophic injury arising from golfer’s negligence (jogger blinded by errant golf ball) and a claim against the Football Association (in relation to its rules on banning players following red cards and accumulations of yellow cards). In a recent rugby case Derek was instructed by Cardiff Blues in respect of the High Court claim brought by Owen Williams against the Cardiff Blues and 5 other Defendants following the catastrophic spinal injury suffered by Owen Williams whilst playing in competition in Singapore in 2014.

Derek has also represented a number of sports clubs in respect of employer’s liability claims; including a Premiership rugby club accused of negligence in the rehabilitation of a player after injury.

Derek is also involved in representing amateur clubs and is familiar with claims being brought by members against unincorporated associations.

Derek is currently involved (on behalf of the WRU) in the prospective claims being advanced by former professional rugby union players against the IRB, RFU and the WRU in relation to brain injury and neuro-cognitive disorder.

Aviation accidents

Derek is instructed in relation to personal injury claims arising from accidents aboard aircraft (both fixed wing and helicopters). Derek has dealt with Montreal convention cases together with non-Convention cases where liability for the accident is in dispute; Derek was instructed by aviation insurers for the aircraft owner in the case of Day v Tasker et al (2009) QBD, Leeds DR.

Derek has also acted for aviation companies and airports in relation to “airside” issues; e.g. he was previously a London airport in relation to an industrial illness claim (by an airside worker) involving alleged breaches of the Control of Substances Hazardous to Health Regulations.

Accidents at Sea

Employer’s Liability Claims involving accidents at sea or on-board ships; Derek has wide experience in this niche area and has experience of cases involving the following:-

• The Shipbuilding and Ship-Repairing Regulations 1960
• The Docks Regulations  1988
• The Merchant Shipping and Fishing Vessels (Health Safety & Welfare) Regulations 1997
• Liability generally where UK regulations do not apply

Conflicts of Laws/Accidents abroad

For many years Derek has acted for insurers in relation to claims arising from personal injury accidents abroad and so conflicts of laws/Rome II issues are frequent in Derek’s practice. He was previously Junior Counsel in a cross border case (involving catastrophic injury) where the damages claim was pleaded at over £40m and then subsequently as Leading Counsel for one of the parties in a cross border claim (resulting from an accident in France) where the damages were pleaded at an even higher figure. Derek has experience of foreign law claims involving: French, Spanish, German, Italian, Norwegian, Belgian, Serbian, Kuwaiti, Brazilian and Maltese law.

Quantum

Derek is involved with all quantum issues generally encountered by personal injury practitioners dealing with catastrophic injury cases. Issues which he is currently dealing with include: severe brain injury; tetraplegia and paraplegia; claimants in states of minimal consciousness; so-called subtle brain injury cases; major psychiatric decompensation consequential on severe brain injury; capacity (litigation, management of affairs and deprivation of liberty) and all issues relating to statutory funding and settlements.

Derek has drafted a considerable number of Periodical Payment Orders and has been involved in a number of cases involving PPOs for care as well as PPOs for other heads of loss. He has also been involved in (and drafted PPOs) cases where claimants have provided reverse indemnities.

Fraud/Fundamental Dishonesty in Personal Injury Claims

Derek has a particular interest in fraud in personal injury cases and is instructed in cases with a (potentially) high value but where issues of fraud or fundamentally dishonest arise. The advent and consequences (in relation to QWOCS) of fundamental dishonesty under s. 57 Criminal Justice and Courts Act 2015 has changed the landscape in relation to how insurers deal with potential fraud in claims and Derek is regularly instructed in cases involving consideration of fundamental dishonesty.

Health and Safety Law

Accidents at work/deaths at work can result in both criminal proceedings against the employer in question as well as private law claims for damages arising from the accident. Insurers tend to be involved in both proceedings and since commencement of his practice Derek’s practice has always involved representing companies or individuals being prosecuted under the Health and Safety at Work Act/daughter legislation as well then acting for them in any subsequent civil proceedings (or inquests).

Derek frequently receives instructions from the employer’s liability insurers of companies and individuals who are facing health and safety prosecutions in the criminal courts and he is very experienced in relation to trials in the magistrates court (e.g. R v Bestway Coventry Magistrates Court; a case under s. 3 of the Health and Safety at Work which involved a so-called “HTML defence”) and the Crown Court with a jury (e.g R v Thomas and R v County Mall Management Limited).

Cases in which Derek has been involved in his practice include prosecutions brought under:-

• Sections 2, 3 and 7 of the Health and Safety at Work Act etc. 1974
• The Workplace (Health Safety and Welfare) Regulations 1992
• The Manual Handling Operations Regulations 1992
• The Health and Safety (Display Screen Equipment) Regulations 1992
• The Personal Protective Equipment Regulations 1992/1998
• The Control of Substances Hazardous to Health Regulations 1988/1999/2002
• The Construction (Health Safety & Welfare) Provisions 1996
• The Provision and Use of Work Equipment Regulations 1992
• The Management of Health and Safety at Work Regulations 1999
• The Electricity at Work Regulations 1999
• The Work at Height Regulations 2005
• Lifting Operations and Lifting Equipment Regulations 1998
• Construction (Design and Management) Regulations 2007/2015
• Control of Asbestos at Work Regulations 1987/Control of Asbestos at Work Regulations 2006/2012

Gross Negligence Manslaughter/Corporate Manslaughter

Derek is one of the few Counsel who has acted in both a gross negligence manslaughter case (R v English Brothers, Northampton Crown Court) and a corporate manslaughter case (R v Cavendish Masonry, Oxford Crown Court). He was recently instructed in another such prospective case (in which the prosecuting authority chose not to proceed after a number of submissions made by the prospective defendant).

Insurance

Derek has considerable experience in disputes arising by reason of fraud/material non-disclosure/misrepresentation in insurance claims. He has represented insurers in a number of such cases which have proceeded to trial (e.g. Savash v Co-Op General Insurance) and which have dealt with the following

• Presentation of fraudulent documents/use of fraudulent devices in support of claims.
• Presentation of fraudulent claims
• Material non-disclosure in claims
• Material non-disclosure/misrepresentation in insurance proposals.

He is currently involved (for insurers) in a number of such ongoing cases.

Derek has also been instructed in disputes involving policy coverage issues. Cases in this area include insurers refusing to provide public liability cover to a footballer who recklessly injured a fellow player, insurers refusing to provide public liability cover to an insured who injured a friend whilst engaging in horseplay with an air-rifle and insurers refusing to provide cover in respect of a fire which had been wilfully/recklessly started.

Road Traffic Act/Motor Insurance issues

Derek is frequently instructing by motor insurers in relation to policy coverage issues/issues under the Road Traffic Act 1988 and potential Art 75 status. He has extensive experience of cases where insurers have Art 75 status and/or where the MIB are involved and indeed has assisted insurers on numerous occasions with submissions to the Technical Committee of the MIB.

Civil Liability

Product Liability

Derek has been regularly instructed over the years by insurers in product liability claims; the cases he has been involved in range from being instructed in the “the toxic leather Sofa” Group Litigation (acting for one of the many defendants) to acting for the manufacturers or suppliers of: bicycles, plumbing equipment, air hoses, butane gas canisters, baby changing stations, televisions, truck tyres, car tyres, motorcycle tyres, bicycle tyres etc.

Group Litigation/Mass Litigation

Derek was instructed in the “the toxic leather Sofa” Group Litigation (acting for one of the many defendants) and is currently instructed as Leading Counsel in relation to the claims (including personal injury and property damage) arising from the New Ferry explosion in 2017 as well as being instructed in the prospective claims advanced by former professional rugby players.

Acting as a QC Mediator in personal injury (and related) litigation

Derek’s seniority and reputation in the personal injury “marketplace” has led to numerous requests for him to act as a QC Mediator in personal injury litigation (and litigation or disputes, such as coverage and insurance disputes arising between motor insurers following a multi-vehicle accident, arising out of personal injury claims). He accepts instructions to act as a QC Mediator and uses his long experience of this litigation to assist parties (not just Mediations involving a claimant and defendants but also as between defendants) who require the involvement of a QC Mediator. He has a fair-minded and “hands on” approach which the parties in Mediation conducted by him have found to be of great assistance and is currently instructed to act as a QC Mediator in a number of cases in which the parties have been unable to achieve settlement by the conventional means of a Joint Settlement Meeting conducted by the parties (or have not believed that a JSM would be a worthwhile exercise due to the differences between the parties).

QC Mediation in Personal Injury Cases

Derek’s seniority and reputation in the personal injury “marketplace” has led to numerous requests for him to act as a QC Mediator in personal injury litigation (and litigation or disputes, such as coverage and insurance disputes arising between motor insurers following a multi-vehicle accident, arising out of personal injury claims). He accepts instructions to act as a QC Mediator and uses his long experience of this litigation to assist parties (not just Mediations involving a claimant and defendants but also as between defendants) who require the involvement of a QC Mediator. He has a fair-minded and “hands on” approach which the parties in Mediation conducted by him have found to be of great assistance and is currently instructed to act as a QC Mediator in a number of cases in which the parties have been unable to achieve settlement by the conventional means of a Joint Settlement Meeting conducted by the parties (or have not believed that a JSM would be a worthwhile exercise due to the differences between the parties).