DAVID W****
v
MINISTRY OF DEFENCE

SETTLEMENT REPORT

Tetraplegia, brain injury, amputation, burns
Settlement at £3.7 million
Method of settlement

1. The Claimant was born in 1964. He was injured severely in an accident in 1990 whilst he was in the Army, and his claim for damages was settled in November 2000. Apart from the size of the damages, the method in which the settlement was reached is of interest.
2. I set out below our valuation of the claim. It must be remembered that we were not assessing the maximum value, but a sensible and realistic compromise position. None of the figures was agreed by the defence.
   PAIN, SUFFERING AND LOSS OF AMENITY
3. The Claimant sustained the most severe injuries; tetraplegia, a brain injury with epilepsy, above knee amputation of one leg, bilateral cataracts and widespread burns. On discharge from hospital he had to live in inappropriate accommodation (including an old people's home) until 1998, when he bought his own bungalow. 200,000
   Interest 28,000
   PAST LOSS
   Earnings
4. The Claimant's career path was predicted to Warrant Officer Class 1 level by 2004. 110,000
   Care
5. This was a combination of the cost of residential homes and professional care in the Claimant's own home. 253,000
   Medical expenses and therapy
6. Spectacles, MRI scan, counselling, physio, TO, aromatherapy and reflexology 8,451
   Travel
7. Taxis, and hire of a people carrier when moving to his own home 7,323
   Accommodation
8. The bungalow was bought for £129,950, and the alterations which were carried out added value of £60,000, although they cost £230,521 181,000 Increased running costs 4,000 Aids and equipment 27,000 Sundries 9,000 Furnishing Extra cost of furnishing the carers' rooms 2,000
   TOTAL PAST LOSS 602,715
   Interest 180,000
   FUTURE LOSS AND EXPENSE
9. We had reserved the right in our Schedule to argue that multipliers should be calculated using a 2% discount rate. Until the Lord Chancellor clarifies this disputed area, it is probably worthwhile preserving the right to argue this point. Of course, defendants always respond by saying that the Court of Appeal has resolved the issue and set the rate at 3%, but that's what they said in July 1997, when the Court of Appeal refused to change the rate from 4.5% to 3%. Their judgment then was shallow and wrong, as demonstrated by the decision in the House of Lords in July 1998. Why should we assume that their approach is correct on this occasion, particularly when their judgment on the multiplier issue in March 2000 again left a good deal to be desired.? Having said that, one has to give up all one's best points in a settlement discussion, that being the nature of compromise (not that this was our best point).
10. Life expectancy was reduced to 32 years from the assumed trial date in August 2000.
    Earnings
11. We took the average civilian starting salary for Class 1 Warrant Officers so that we could predict the Claimant's earnings when he left the Army 289,000 Pension 75,000
    Care
12. Our expert was Mrs Maggie Sargent. The annual cost of care was predicted to be £85,000, producing a total claim of 1,680,000
    Medical expenses and therapies
13. MRI scans every three years to the brain, cervical and thoracic spinal cord; physiotherapy; occupational therapy; chiropody; reflexology; fertility treatment; renewal of spectacles; 59,000
    Transport
14. A Chrysler Voyager suitably adapted would cost £41,201; replacement every four years with a residual value of £18,500; credit was given for a 1,600 cc car which it was assumed that the Claimant would have had if he had not been injured. 5,000 additional miles a year. 130,000
    Accommodation
15. Whilst in the Army the Claimant would have incurred the costs of a soldier living in barracks. It was assumed that on leaving the Army he would have bought a house for three times his gross annual earnings ie £63,000 74,000
16. Increased running costs 4,000
17. Heating, contents insurance, handyman costs, internal decoration, window cleaning, disinfectant, washing powder 50,000 Aids and equipment 310,000
    Sundries
18. Clothing, telephone, garage heater, maintenance of the wooden floors in the bungalow 15,000
    Holidays 162,000
    Prosthetics
    Dorset Orthopaedic limbs for cosmetic, rather than functional, purposes 26,000
    Leisure
19. Contingency fund to cover extra care when the Claimant goes swimming, to concerts, to the gym, or to meetings 40,000
    TOTAL SETTLEMENT FIGURE £3,700,000
20. This is the highest settlement ever agreed by the Ministry of Defence. It is one of many in which I have been involved with the MOD, and our experience (on both sides) may be interesting. A meeting was arranged some time before trial at which the Claimant, silks on both sides (and a junior on ours), both solicitors, and the claims manager, all attended at a venue which was convenient to all concerned. Lunch is arranged for each side separately, so that there is no element of haste. The point which is most noticeable to me is that both sides enter the negotiations in a spirit of compromise and good will. The defence claims manager is very impressive; he really does take the view that it is the duty of the Army to look after their own, even after injury. That sets the scene, because he is insistent on selecting lawyers who will adopt the same attitude. Not surprisingly, perhaps, that approach has a profound effect on me, and all those involved on our side. It is such a pleasure (and surprise, initially) to negotiate in that atmosphere; inevitably it brings out our reasonable side! As a result, we have never failed to settle following one of these round table consultations.

15 December 2000

BILL BRAITHWAITE Q.C. and GERARD MARTIN Q.C. for the Claimant, instructed by Donns.