Duncan McNair

Year of Call: 2003
Email Address: duncan.mcnair@3pb.co.uk
Telephone: 0117 928 1520

Download Full CV Add to CV Shortlist

How to use the Shortlist tool?

Overview

Duncan McNair practices in personal injury and clinical negligence, enjoying a substantial advisory and court practice.

Duncan acts for both claimants and defendants in all elements of personal injury law including serious road traffic accidents, occupiers’ liability, employers’ liability and high value claims. He often advises in complex disputes requiring extensive schedules and involving challenging causation issues.

Duncan has particular expertise in employers' liability, specifically cases involving accidents at work, where his background outside law and his degree in physics provide a particular insight and skill when dealing with technical expert evidence.

Taking a practical and unflinching approach to risk assessments in marginal CFA cases, Duncan is not afraid to run cases where prospects are less than guaranteed. He is regarded as an accomplished and fearless advocate by both professional and lay clients.

He also has experience advising and representing parties at Inquests and the Criminal Injuries Compensation Scheme.

Expertise

  • Personal Injury
    Add this expertise to your shortlist

    Duncan acts for both claimants and defendants in all elements of personal injury law including serious road traffic accidents, occupiers’ liability, employers’ liability and high value claims. He often advises in complex disputes requiring extensive schedules and involving challenging causation issues.

    Duncan has particular expertise in employers' liability, specifically cases involving accidents at work, where his background outside law and his degree in physics provide a particular insight and skill when dealing with technical expert evidence.

    Taking a practical and unflinching approach to risk assessments in marginal CFA cases, Duncan is not afraid to run cases where prospects are less than guaranteed.

    He also has experience advising and representing parties at Inquests and the Criminal Injuries Compensation Scheme.

    Cases of note include:

    • S v G: Acted for middle-aged claimant in claim arising out of moderate road traffic accident with moderate physical injuries. Claimant suffered devastating post-traumatic stress disorder which arose after the accident, but the content of his disorder related to sexual abuse he suffered as a small child. There were substantial causation issues: our expert said that, but for the accident, the claimant would not have developed the psychiatric symptoms, regardless of their subject matter; defendant's expert said that the claimant would have developed them at some time in any event.
    • Significant quantum issues included lost earnings: claimant was in the process of setting up a business at the time of the accident and we had to reconstruct his potential income from limited evidence. The claimant's PTSD complicated matters because he was prone to entering a dissociative state in moments of stress, which required careful and sensitive handling.
      The case settled after a JSM for £105,000 plus CRU of approximately £20,000.
    • S v L: Acted for young claimant in claim for traumatic brain injury suffered in road traffic accident. Ongoing complaints of severe fatigue, concentration problems and personality change; claimant was by now in university, managing her course, but requiring substantial extra effort. Experts for both sides (neuropsychologists and neuropsychiatrists) disagreed as to whether brain injury was moderate, with cognitive changes arising from physical damage, or mild, with cognitive changes arising out of post-concussion syndrome and psychiatric factors. If the latter, the experts disagreed about the likely prognosis. Claim settled for £95,000.
    • B & M v D: Acted for defendant's insurer in fatal motorcycle accident in which defendant suffered paraplegia and his pillion passenger died when a vehicle ran over her. The driver and passenger of the other vehicle sued the defendant, claiming psychiatric injury but not physical injury. Advised on the law on causation, taking account of the criteria for recovery of psychiatric injury as a primary victim on the basis that the claimant was an 'unwilling participant' who had unintentionally caused another person's death. The driver and passenger were in very different legal situations because the driver was the unwitting cause of death but the passenger, probably, was not. Both claimants had pre-Jackson funding arrangements and the insurer made an economic settlement.
    • B v B: Acted for claimant, pillion passenger who suffered serious injuries in a motorcycle collision where the driver, her fiancé, died in collision with a bus. Indemnity issues regarding driver's failure to notify insurer of modifications. Claim ran against fiancé’s estate, the bus company and fiancé’s insurer under Article 75. Liability and indemnity issues eventually resolved in claimant's favour. Injuries included moderate head injury and significant pelvic fracture, though the claimant returned to work and independent living. Settled for £150,000.
    • G v a motor insurer [2013]: acted for a passenger who claimed damages for loss of the chance of a career in the armed forces. This required complex calculations as to the value and chance of different factual scenarios, which Duncan resolved by developing an IT-based solution.
      Settled for £135,000.
    • Stephens v Braham [2013]: Duncan’s client was a motorcyclist who suffered severe injuries when overtaking a car turning right at a junction. Two independent witnesses gave evidence that the car had been signalling right for some time before the turn. Client’s Part 36 offer was 50/50 and other side’s was 75/25 against. At a hard-fought three-day liability trial the judge found 50/50, matching Duncan’s Part 36 offer.
    • Tucknott v Bridgend CBC [2013]: acted for a cyclist who fell as a result of a defective bridge surface on a cycle path. He sustained a serious femoral fracture with life-changing consequences. The defendant fought the case on complex arguments as to the status of the path: it argued the path was not a public highway at the accident locus, because the order creating it designated a different route. After cross examination of the defendant’s surveyor the judge accepted Duncan’s arguments and found the path to be on the public highway. Judgment on liability for claimant.
    • W v T [2012]: acted for claimant who stumbled over poorly-compacted backfill where a utility company had dug a trench. It denied liability but Duncan pleaded the surprising but effective application of the CDM regulations. Claimant suffered injury to her leg leading to amputation. Defendant raised complex medical causation issues as claimant suffered diabetes and had a serious fracture to the same leg one year previously; alleged that index accident did not cause loss of leg. Both liability and causation issues settled in claimant’s favour for lump sum of £500,000.
  • Clinical Negligence
    Add this expertise to your shortlist

    Duncan has a burgeoning clinical negligence practice involving issues of limitation and knowledge, consent and negligently performed surgery, including in particular cosmetic surgery. His advisory work is very highly regarded and he is one of the few practitioners in this field to have direct experience of clinical negligence litigation all the way through to judgment.

    Recent cases:

    • C v an NHS trust [2014]. Duncan acted for a claimant who experienced severe complications (including a lifelong colostomy) when a laparoscopic abdominal procedure went wrong. The defendant raised vigorous disputes on breach of duty and causation, but settled for 85% of full valuation a matter of days before trial in the High Court.
    • E v Dr A [2012]: Duncan acted for the claimant in a six-day trial on the issue of the true extent of informed consent in elective surgery. His opponent was a notable silk with extensive experience of clinical negligence. Duncan succeeded and the defendant failed in his application for leave to appeal.

    Before joining the Bar Duncan had a successful career as a recruitment consultant, which provides him with useful and practical experience in the commercial aspects of litigation and expectation management.

    Costs
    Duncan has extensive experience in civil costs, both pre and post Jackson reforms. He has conducted numerous detailed assessments in the SCCO, the county courts, and since Jackson has also conducted numerous costs and case management conferences. He advises and represents clients on high valued bills and Form Hs, both on CFA cases and on private client cases.
    Duncan has a broad litigation practice, which enables him to apply his experience of running a case to technical costs points.

    Recent cases:

    • Advising a road traffic insurer on whether Article 75 of the MIB agreement allowed it to avoid paying costs for which a claimant was insured
    • Advising and representing an after-the-event insurer joined to proceedings for the purpose of a non-party costs order with regard to conduct in negotiations
    • Advising an insurer on the merits and procedure in a case where the litigant obtained a costs order against a bankrupt but insured individual where the bankrupt’s insured repudiated indemnity
    • Broadhurst v Tan: instructed by defendant in circuit judge appeal on an important point of principle under the new fast-track fixed costs regime. Should the court oust the fixed costs regime when the claimant gets an award of indemnity costs? Or does an award of indemnity costs make no difference, as the costs are fixed? Resolved in favour of defendant
    • Kandasamy v Sohel: circuit judge appeal on pre-action protocol in low-value personal injury claims. Where a claimant is entitled to withdraw from the protocol because the defendant declined to make an interim payment, but the claimant serves notice out of time, is the notice still valid.

    Inquests
    Duncan has expertise in employers' liability and particularly cases involving complex accidents at work. His degree in physics provides him with particular insight and skill in dealing with technical expert evidence. Duncan’s practice also includes many high-value claims, including complex disputes with extensive schedules and challenging causation issues. Duncan also undertakes fast track cases.

    Duncan acts for both claimants and defendants in all elements of personal injury law including serious road traffic accidents, occupiers’ liability claim and employers’ liability. He deals with industrial disease, particularly noise-induced hearing loss, and claims against the Ministry of Defence. Before joining the Bar Duncan had a successful career as a recruitment consultant. That experience provides him with useful and practical experience in the commercial aspects of litigation.

    Solicitors will always be concerned about counsel's threshold for accepting CFA cases. Duncan takes a practical and unflinching approach to risk assessment in marginal claims, and is not afraid to run cases where prospects are less than guaranteed. He usually wins them.

    Duncan also represents parties at Inquests and the Criminal Injuries Compensation Scheme.

    Recent cases:

    • G v a motor insurer: acted for a passenger who claimed damages for loss of the chance of a career in the armed forces. This required complex calculations as to the value and chance of different factual scenarios, which Duncan resolved by developing an IT-based solution. Settled for £135,000 (2013)
    • Stephens v Braham: Duncan’s client was a motorcyclist who suffered severe injuries when overtaking a car turning right at a junction. Two independent witnesses gave evidence that the car had been signalling right for some time before the turn. Client’s Part 36 offer was 50/50 and other side’s was 75/25 against. At a hard-fought three-day liability trial the judge found 50/50, matching Duncan’s Part 36 offer (2013)
    • Tucknott v Bridgend CBC: acted for a cyclist who fell as a result of a defective bridge surface on a cycle path. He sustained a serious femoral fracture with life-changing consequences. The defendant fought the case on complex arguments as to the status of the path: it argued the path was not a public highway at the accident locus, because the order creating it designated a different route. After cross-examination of the defendant’s surveyor the judge accepted Duncan’s  arguments and found the path to be on the public highway. Judgment on liability for claimant (2013)
    • W v T: acted for claimant who stumbled over poorly-compacted backfill where a utility company had dug a trench. It denied liability but Duncan pleaded the surprising but effective application of the CDM regulations. Claimant suffered injury to her leg leading to amputation. Defendant raised complex medical causation issues as claimant suffered diabetes and had a serious fracture to the same leg one year previously; alleged that index accident did not cause loss of leg. Both liability and causation issues settled in claimant’s favour for lump sum of £500,000 (2012).

Recommendations

‘He has skills beyond his years of call.’

Legal 500 2017/Regional Bar - Western Circuit, Personal injury and clinical negligence – Leading juniors

'He provides excellent paperwork, advice and exceptional advocacy skills'

Legal 500 2016/Regional Bar - Western Circuit, Personal injury and clinical negligence – Leading juniors

'Always efficient and helpful'

Legal 500 2015/Regional Bar - Western Circuit, Personal injury and clinical negligence – Leading juniors

'Unflinching in the face of difficult issues.'
'A talented advocate'

Legal 500 2014/South Eastern Circuit - Personal Injury and Clinical Negligence.

Client Testimonials 
A Court of Appeal judge commented to Duncan McNair in a recent application for permission to appeal in a personal injury case: “(The client) has been lucky to have you as his advocate".