Severe brain damage; settlement nine days before trial
The effect of smoking
An alternative diagnosis of Alzheimers disease
The Claimant was born in 1936 and so was 56 at the date of the accident on the 1st July 1992. He was 64 at the date of settlement.
Mr R**** had been walking across a road when he was knocked over by a car. Judgement was obtained by consent for two thirds of full liability.
Mr R**** sustained severe brain damage caused by an embolism, together with various other injuries of less significance. Even though he had not been working at the time of the accident, due to an industrial injury years earlier, the brain injury had a very serious effect on him, effectively causing the onset of dementia. He lost all power of effective communication, and apparently of rational thought, and, for example, would sit all day staring into space and fiddling with cigarettes. His main carer was his wife, and she was helped at a later stage by companion carers from the Brain Injury Rehabilitation Trust.
The case was listed for trial on the 29th June 2000, and the Defendants made a realistic payment into Court on the 20th June.
The figures agreed as realistic by the Claimant's legal advisers were as set out below, but of course it has to be emphasised that there was no element of discussion or agreement with the Defendant's lawyers. The High Court approved a settlement at this level.
| Pain, suffering and loss of amenity | £75,000 | |
| Interest | £8,800 | |
| Past loss and expense | ||
| Family care, after deduction of 25% Housecroft v.Burnett | £80,000 | |
| BIRT rehabilitation costs | £12,448 | |
| Interest | £32,000 | |
| Total Past loss inclusive of interest | £140,000 | |
| Future loss and expense | ||
| Family care and night sitter | £127,500 | |
| BIRT companion carer costs | ||
| - first year | £22,000 | |
| - second year onwards | £154,665 | |
| Total future care | £304,165 | |
| Equipment | £35,000 | |
| Accommodation | ||
| Extra cost of bungalow | £21,000 | |
| Adaptations | £12,315 | |
| Cost of moving | £5,908 | |
| Extra insurance and tax | £3,600 | |
| Total future accommodation | £43,000 | |
| Court of Protection | £10,000 | |
| TOTAL PAIN AND SUFFERING, PAST AND FUTURE LOSSES | £616,165 | |
Two particular points had to be borne in mind when valuing the claim. First, the Claimant was a lifelong smoker, and a reduction in life expectancy of 5 years was agreed. Secondly, and more importantly, at a very late stage in the litigation the defence neurologist asserted that the Claimant's condition was due to the coincidental development of Alzheimers disease, as distinct from the dementia caused by the brain injury. This was a complicating factor, because it was our case that the initial injury had caused symptoms very similar to Alzheimers. The defence position was that there had been a significant recent change in the Claimant's presentation, supporting the argument for the onset of a separate cause of the problem. If that argument had prevailed, the claim would have been worth a fraction of the above figures.
The payment into Court represented £525,000 at full liability, as opposed to our figure of £616,000. We considered it appropriate to discount for the risk of failure on the Alzheimers point, and also to reflect the overall lack of certainty in the assessment of quantum in cases like this. Part of the problem is always in assessing and predicting what outside help the family will actually use, once the case has been concluded.
30 December 2000
BILL BRAITHWAITE QC
****