DANIEL M****
and
RICHARD N****
SETTLEMENT REPORT
1. Mr Danny M**** was born in 1948 and so was 46 at the date of the accident in
July 1995. He was 52 at the date of settlement.
2. Mr M was the nearside, rear seat passenger in a Bentley being driven by his
employer. The car was travelling at about 80 mph when it left the road and hit
a tree; the impact was at about 40 mph, and was so severe that the car was cut
in half. The Claimant was thrown out of the car. At some stage, either in the
car or when he was ejected, the Claimant sustained severe brain damage.
3. There was an issue whether a seat belt would have prevented, or reduced significantly,
the injuries sustained. Experts had reported on both sides, and it seemed as though
the areas of disagreement were whether the significant brain injury had been caused
by the shaking of the head during the high speed impact (which would not have
been prevented by a seat belt) or by contact with the ground on ejection from
the car.
4. In considering the payment into court of £1.25 million, the following figures
were considered acceptable.
PAIN, SUFFERING AND LOSS OF AMENITY
5. This was a very severe brain injury which had ruined the Claimant's life.
However, he did not have pain, and his insight did not appear to render the
disability and handicap intolerable. There was agreed to be a three to five
year reduction in life expectancy.
£160,000
Interest £8,000
PAST LOSSES
Earnings
6. The Claimant had been earning just over £50,000 a year at the time of the
accident. Assuming inflationary increases, the claim was for £189,000 about
which there could be little dispute. Inclusive of perks, the figure was £221,000
Care
7. The Claimant's partner had given some care, but the majority was provided
by rehabilitation units and, latterly, by the sheltered home where the Claimant
lived. The total claim was for £35,000, from which we deducted 25% for Housecroft
v Burnett, leaving £26,000. The claim for professional care and rehabilitation
was in the region of £318,000
Equipment
8. £1,500
Receiver's costs
9. Due to various difficulties with the selection of private individuals, it
was necessary to appoint a solicitor as one of the two Receivers; his costs
were £15,000, to which there had to be added £9,000 for dealing with the Claimant's
personal affairs, and one of the private Receiver's expenses. It was felt that
these costs were high, and £10,000 was allowed.
£10,000
TOTAL PAST LOSS £386,000
Interest £81,000
Less interim payment interest (£36,000)
FUTURE LOSS AND EXPENSE
Earnings
10. Assuming the same level of earnings, the only issue would be age of retirement.
There were various perks to be included.
£496,000
Care
11. There was no issue about the Claimant's placement in sheltered accommodation.
The only uncertainty was whether he needed, in addition to the care provided
by the home, additional carer support on a one-to-one basis, and case management.
We expected to succeed on both issues, partly because the home supported our
position and partly because of the poor quality of the defence expert.
£850,000
Case management
12. As above, we felt comfortable with this aspect of the claim. It is important
that brain injured individuals, who may become vulnerable and easily exploited,
should not be placed in a commercial home or accommodation without outside supervision,
to ensure that the placement remains suitable, the quality and standards do
not fall, and the patient is treated with dignity and humanity.£60,000
Receiver
13. The costs of the professional were claimed, but it was assumed that the
task would become easier with the passage of time.£50,000
Court of Protection
14. £3,000
15. The claim as assessed by us amounted to about £1.6 million. It was then necessary
to consider the impact of the seat belt issue. There was a clear risk whether
the Claimant's expert evidence would prevail over the Defendant's. If it did not,
there was a further risk that this was precisely the type of case which defence
insurers have been hoping would present them with the opportunity to ask the Court
of Appeal to re-consider Froom v Butcher.
16. In Hitchens v Berkshire County Council, His Honour Judge Anthony Thompson
Q.C. had to consider the effect of the deceased's failure to wear a seat belt,
which would have prevented almost all his injuries. He said that, had he been
free to approach the matter unguided by authority, he would have found a very
substantial degree of contributory negligence, to the extent of at least 50%.
However, he was bound by the decision in Froom v Butcher, but thought that it
was perhaps time for the Court of Appeal to look afresh at the appropriate level
of contributory level of contributory negligence; up-to-date guidance was necessary
because there had been a "sea change" in attitudes to the wearing of seat belts.
17. In Jones v Wilkins (Court of Appeal 18th December 2000) the Court
of Appeal pointed out that, although the 25% figure in Froom v Butcher was meant
as a guideline only, it was known at the time of the case that legislation was
contemplated to make the wearing of seat belts compulsory; this comment was to
meet Judge Thompson's second point, namely that, since Froom, it had become illegal
to fail to wear a seat belt. The Court of Appeal emphasised that there is a discretion
in apportioning the percentage, and added that in principle there could be exceptional
cases where a reduction of more than 25% could be appropriate. The fact that they
did not increase the trial judge's apportionment cannot be used to support the
argument that 25% is the right deduction in normal cases, because the issue in
Jones was the comparative negligence of the Claimant's mother and aunt; the aunt
was driving and the mother was in the front passenger seat, wearing her seat belt,
but with the Claimant on her lap, restrained only by the lap part of the belt.
The judge found that, had the Claimant been wearing an approved child restraint,
the risk of injury would have been entirely, or almost entirely, eliminated. The
Court of Appeal noted that there was no evidence that the mother and aunt had
understood that the risk of injury was greater than had the Claimant not been
restrained at all, and thus their blameworthiness was limited; they had not deliberately
taken a risk of greater injury.
18. It is common knowledge that insurers are waiting for the right case to try
to change the law, and claimants' lawyers have to take account of this in advising.
The Court of Appeal tends to be traditional and conservative in its approach,
and nowadays might be swayed by the notion that individuals must take responsibility
for their actions. I had that experience recently in the Court of Appeal, representing
a young man in the Army who had been "urban surfing" (riding on the outside of
the Army lorry whilst drunk), although they accepted eventually that there had
been negligence (Jebson v MOD - see under Case Reports).
19. If we had lost on the expert evidence, we would have lost 25%, which would
have taken the award down to about £1,265,000. If the trial judge or the Court
of Appeal had decided that this was one of those exceptional cases, and felt that
an equal apportionment of blame was appropriate, the damages would have gone down
to about £800,000. Quite a big risk! Hence the settlement.
4 May 2001
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