CHRISTINE H****
and
S**** HEALTH AUTHORITY
SETTLEMENT REPORT
Severe brain damage caused at birth
Life expectancy to age 36
Settlement at £2 million
- Christine H**** was born on the 22nd April 1985, and so is now 15. Her
action for damages for clinical negligence was listed for trial in December
2000, but was settled by agreement at £2 million, which was approved
by the judge.
LIABILITY - Admitted.
QUANTUM - Christine suffers from athetoid cerebral palsy affecting all four limbs;
she has controlled epilepsy; she has a learning disability which is probably
not very severe. She is severely disabled and handicapped, her main functional
problems being lack of mobility and hand skills, inability to communicate
by speech, and feeding difficulty. She will never be able to walk independently,
and will always be dependent on a carer for feeding, washing, bathing,
toiletting and dressing. Her life expectancy was agreed to be to the age
of 36.3.
Accommodation - It was agreed that the present accommodation is unsuitable. Christine's parents planned to build a house on land bought from Christine's stepfather's family, and that was agreed to be appropriate, as was the current intention for the family to remain together as long as Christine wants. There was a very significant disagreement between the surveyors as to the cost of the project, part of which concerned the size of the proposed house and the number of rooms which would be necessary. One of the defence surveyor's arguments on cost seemed to be that a suitable alternative property could be found in the area for about £135,000; this would not be relevant once it was agreed that the plan to build was the correct solution.
- There was a separate issue as to whether a hydrotherapy pool was justified on the basis that it is a sensible and reasonable therapeutic requirement, or whether it would provide no benefit to Christine, and would be a disadvantage to her (because it encouraged social isolation).
- It was agreed that the value of the home which Christine would have bought had she not been injured should be deducted, but the question remained whether an additional deduction should be made for the value of her mother and father's current accommodation, on the basis that they will live with Christine in the future. In the end this depended on the evidence about what the parents would have done if Christine had not been injured.
- Whether there should be two bedrooms for carers depended on the package
of care which the Court considered appropriate; it was apparently agreed
that, if there would be different carers at night, two rooms would be
necessary. The need for a separate therapy room depended on the other
elements of the design of the house; it probably would have been agreed
that it is not appropriate to store physiotherapy equipment in the living
rooms, nor that the equipment should have to be moved all the time for
regular therapy.
Care - There was disagreement about the correct hourly rate for both past and future care. In addition, we contended that it was not appropriate to deduct anything from the normal rate to reflect the fact that tax and national insurance has not been paid, and will not be paid (the Housecroft v Burnett deduction), because of the nature, quality and extent of the care provided by the family: Lamey v Wirral Health Authority - Kemp 5-024 (a case in which I appeared; the judge said that it was important to look at the quality of the care).
- The important issue was as to future care. Phase 1 was up to the age
of 19, when schooling will cease; our annual figure was £47,000,
theirs was £27,000. From the age of 19 onwards, the annual rates
were £66,000 compared to £51,000. The main reasons for the
difference were the assessment of the extent of the care needed, and the
cost.
Earnings - The claim for loss of earnings was partly for the ordinary loss, up
to the age of 36.3, and partly for the lost years beyond that age. Both
claims were based on the New Earnings Survey, using a weekly figure of
£317.80 gross, £258.50 net (£13,442 pa). The Defendants
argued that such a claim is highly speculative; they suggested that a
small lump sum is preferable, but this ignored the family history and
personalities, and the probability that Christine would have been brought
up in a household with a strong work ethic, and probably would have worked,
broadly, throughout her life. This argument is always based on the comment
of Lord Scarman in Gammell v Wilson 1982 A.C. 27 at page 78 that, in the
case of a young child, the lost years of earning capacity will ordinarily
be so distant that assessment is mere speculation. I disagree fundamentally
with this approach, which is rarely followed in ordinary claims for lost
earnings. It is common practice now to present such claims on the basis
of the wider family's history of jobs, using brothers, sisters, parents,
grandparents, uncles and aunts as appropriate indicators of what the future
would have held for the claimant. I find it difficult to accept that a
different approach is required simply because the defendant has injured
the person so badly that his or her life expectancy has been reduced to
less than normal retirement age.
Aids and equipment - Effectively agreed.
Multipliers - We reserved the right to put forward a technical argument that the discount
rate should be 2%, in order to preserve our right of appeal. We accepted
that the Court was bound by the Court of Appeal to use the rate of 3%.
Interest - It was asserted that the Claimant had been slow to prosecute her action,
and that therefore the claim for interest should be reduced to 6.5 years.
We contended that it is appropriate in a claim involving injuries of this
sort to make sure that the Court has the maximum chance of predicting
the future as accurately as possible, and that it is easier to do that
in relation to a young person of 15 than for a much younger child. In
addition, we relied on the policy decision to allow claims such as this
to be brought beyond the three year period.
SETTLEMENT - The case settled on the morning of trial. The mechanics were that the Defendants paid £2 million into court three weeks before trial, so that the last day for acceptance was the Friday before the Monday on which the trial was due to start. We had told them well in advance that we did not want to negotiate on the morning of the trial, because it always seems to me to be unfair on claimants that they should be put under that sort of pressure; instead of having the opportunity to mull over such a major decision in the comfort of their own home, having received careful advice from their lawyers, they have to make their minds up almost immediately. The previous payment into court had been many hundreds of thousands of pounds less, designed to tempt the family (in the hope that they would be nervous and fragile), and the lawyers (in the hope that they would see all the difficulties which surround cases like this, and would advise settlement at a low figure).
24th December 2000
BILL BRAITHWAITE Q.C.