F H
and
W B
SETTLEMENT REPORT
Severe brain damage at 10 months of age
Settlement at £2.5 million
F H was born in 1986 and so was 10 months old at the date of the accident in 1986.
She was 15 at the date of the settlement in April 2001.
LIABILITY
1. Judgment entered in 1992.
QUANTUM
2. The Claimant sustained extensive fractures of the skull, causing damage
which led to raised intracranial pressure, subdural haematoma, hydrocephalus
and early onset epilepsy. She is hemiparetic on one side and walks with an awkward
gait, and has difficulty using one arm and hand. There is some difficulty with
vision, but the main problem is with learning and memory, disinhibition and
vulnerability. There is a slightly increased risk of the epilepsy becoming generalised,
and of her deteriorating mentally in old age.
3. She is currently at a special residential school, where she might remain until
she is 19, following which it is hoped that she will go to college until she is
25, when the plan is that she would move into her own bungalow, near her parents,
with a suitable care package.
4. The figures set out below were not agreed, but probably represent a fair assessment
of the breakdown of the final settlement.
PAIN, SUFFERING AND LOSS OF AMENITY
5. We thought that an award for pain, suffering and loss of amenity
should be in the region of £160,000, on the basis that the Claimant appears
to be a happy young woman, and the hope is that she will remain so. Her physical
disability is not as serious as it can be following this type of brain damage.
£160,000
PAST LOSSES
6. There was a normal claim for past care, but in addition
we claimed for a significant element of mother's care at case management rates,
instead of the pitiful hourly rate of £5 or so with which we generally reward
families for looking after their severely injured loved ones. Interestingly,
we continued the claim for mother's case management even after a professional
case manager was appointed, on the basis that mother had continued to carry
out tasks which required that type of expertise. £180,000
7. Accommodation is presently provided by the school during term,
and the parents had carried out alterations to their lovely listed cottage and
created an annexe for their daughter. That work cost nearly £80,000, but the point
of principle was what allowance should be made for betterment to the parents'
house; the mechanics were that the Claimant paid for the work, and the parents
then transferred to her ownership of the precise proportion of the house which
was represented by the cost of work compared to the current value of the improved
house. The defence argument was that, because the house would increase in value
by the cost of the work, which it would (unusually), therefore the Claimant should
give credit for the whole of the increase in value, extinguishing her claim. That
was wrong, because she would not reap the whole of the increase, only her percentage
of it.
FUTURE LOSS
8. The Claimant's life expectancy was reduced by only about one year.
9. The claim for care was divided into two periods, up to and
after the age of 25. In the first period, the care would be provided mostly by
the school and college, but also with parental help and paid assistance, whereas
from 25 onwards it would be a professional package, thus allowing the family to
revert to their family roles. The annual cost was anticipated to be about £61,000.
The defence suggestion, by their expert Maureen Bingham, was a little over £30,000
a year. In all these big cases the lawyers have to make judgments about the quality
of the evidence on either side, and it is made much easier when there is a stark
contrast; Maggie Sargent was our expert - she had visited moderately recently,
and had considered Mrs Bingham's report. We therefore felt confident in standing
firm on this element of the claim.
£1.2 million
10. On case management we had to make a similar decision, but
this time between our own experts; our care expert gave a lower annual figure
than our case manager. We therefore compromised. £140,000
11. The claim for loss of earnings was very interesting. Both
parents were intelligent people, who were very keen on the development of their
children's intellects and abilities. He had been a pilot and she had given up
a career in geology as a result of her daughter's disability and handicap. We
predicted a career in one of the professions for the Claimant, and asserted that
she probably would have earned £40,000 a year by the age of 30, £60,000 by 40
and £100,000 at 50, retiring at 65. This was an area of obvious risk, partly because
it does not depend on the quality of expert evidence, but mostly because judges
can be very cautious about other people's children. I represented a claimant in
London recently, whose twin sister, brother and father were all high earners,
but the judge nevertheless took a very average figure for the claimant's likely
earnings, reducing her claim on that head by £450,000. The claim was for £760,000,
but we reduced it to either £500,000 or £600,000. £500,000
12. The uncertainty about the claim for transport was as to the
nature of the car which the Claimant would have run if she had not been injured.
As we were claiming for high earnings, it might have followed that she would have
had an expensive car; however, that pre-supposes that the two inevitably go together,
which they obviously don't. Also, if the career had been in London, a car might
not have been necessary. The claim was for £96,000, but a compromise figure was
£50,000
13. Future accommodation costs were reduced for the same reason.
Few adaptations would be necessary to the bungalow, and we would have to assume
expensive housing had the Claimant not been injured. Of course, one always has
to take account of the possibility that a young person would share housing costs
with a partner, thus reducing them, whereas that would be extremely unlikely for
the Claimant. £45,000
14. Physiotherapy, speech therapy, occupational
therapy and psychological supervision amounted to about
£29,000, from which we discounted to reflect the needs caused by the normal ageing
process. £27,000
15. There were various other heads of damage. The total claim, assessed in compromise
terms, was £2,700,000, which would have been reduced significantly had the judge
taken the sort of approach recounted above in relation to loss of earnings. The
first offer was £2,250,000, which we rejected, and the Defendant then offered
£2.5 million, which was accepted.
11 March 2001
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