Raymond J
and
David P
SETTLEMENT REPORT
Severe brain injury settlement at £1.7 million
Mr RJ was born in 1952 and so was 42 at the date of the accident in 1994. He
is now 49.
LIABILITY
Judgment was entered in 1997.
QUANTUM - Pain, suffering and loss of amenity
Mr J suffered an extremely severe brain injury which has caused impaired
cognition affecting memory, concentration and the ability to think and reason
flexibly; he has impaired emotional control, and a tendency to drink and smoke
to excess, back pain, and a visual defect (left homonymous hemianopia), with reduced
acuity in the left eye. The effect has been profoundly disabling, so that the
Claimant can no longer work, and requires a substantial level of care.
QUANTUM - Financial loss
Future loss of earnings
The claim was based on a net annual income of £13,260, on the basis of the Claimant's
pre-accident earnings. The complication was that the Claimant would have been
made redundant in any event, and the defence solicitors asserted that the Claimant
would then have been unemployed for not less than 12 months, and would eventually
have got a job paying some thousands of pounds a year less than he was earning
at the date of the accident. We felt confident that we would win this point,
because the Claimant's father was able to tell us that his son was a valued
employee, and would have got another job, or would have been re-employed, within
a short time.
Future care
This was the real issue; our claim was for £1,515,031, as against £646,312.
We had based the calculations on reports by Dr Martyn Rose and Maggie Sargent,
whereas the defence figure relied on Dr Derick Wade and Mrs Jane James. We contended
that the feature which was of importance was the gradual development of care
over the years since the accident. Mr J was relying on family to start with,
and since then his daily hours of care have increased, first to 7 and now to
12. The difference of approach was probably demonstrated by Dr Wade's comment
that Mr J "is currently managing safely and happily ....", which we said demonstrated
that he had under-estimated the nature and extent of the problems.
It was interesting to see how Mrs James's opinion changed as time passed (this
is not a criticism - perhaps a compliment if anything, because it showed that
she was prepared to consider fresh evidence and the passage of time). In 1996
she was anticipating 21 hours a week; in 1999 she was still at that level, although
she recognised the need to monitor Mr J's progress before a decision could be
made as to his final requirements. At about that point, it was being suggested
by the defence that the Claimant should be "placed" in an institution. Mrs James
reported again in October 2001, at which time the care had just been increased
to 12 hours a day. She recorded that there had been recent deterioration (as predicted
by Dr Rose a long time earlier), and that there was ongoing concern about drink.
She said: "Mr J is currently receiving support for twelve hours per day due to
a deterioration in his behaviour. This increase of support appears to have stabilised
the situation, and I would therefore recommend that it continue.". On that basis,
she costed the current care required at £47,252 pa, compared to Mrs Sargent's
£49,069. Mrs James's figure for when Mr J's father is no longer available to help
was £69,266 as against Mrs Sargent's £78,509.
Our case was that it is easy to under-estimate the Claimant's need for care. It
may be important to note that the purpose of care is not simply to allow Mr J
to exist at a basic level, but is to offer him a reasonable quality of life, so
that he can recover to some, limited extent the pleasure which he has lost. It
might be possible to summarise his present position as safe and happy, as Dr Wade
did some time ago, because the Claimant frequently plays snooker and has a few
pints, but that probably does not reflect the reality of his rather sad existence.
On the morning of the trial, the Defendants increased their payment into court
by almost £200,000, to £1.7 million, which was the figure which we had said several
weeks earlier that we would accept. The figures below were not agreed by the defence,
but were approved by the High Court Judge.
Pain, suffering and loss of amenity, inclusive of interest
£150,000
Past losses
Care, based on Maggie Sargent, subject to a 25% Housecroft discount £40,000
Earnings £75,000
Rehabilitation costs £119,000
Public Guardianship Office and money management £10,000
Future losses
Earnings £100,000
Pension £10,000
Care £1.2 or 1.3 million
Alterations to house for resident care in later years £20,000
Money management and Public Guardianship Office £45,000
TOTAL SETTLEMENT £1.7 million
5 February 2002
BILL BRAITHWAITE Q.C.
Exchange Chambers
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