KEITH L****

and

ARTHUR D****

SETTLEMENT REPORT

1994 L No 118

1. Mr Keith (Jake) L**** was born on the 28th January 1968 and so was 23 at the date of the accident on the 24th September 1991. He was 32 at the date of trial. He had been knocked down by a car, and sustained very severe brain damage. After years of living with his family in difficult conditions, he spent several months in rehabilitation with the Brain Injury Rehabilitation Trust, following which he went to live in one of their managed houses which had a background 24 hour support.

   LIABILITY

2. Judgment was entered for 75% on the 21^st January 1999.

   QUANTUM

3. The Claimant sustained an extremely severe brain injury when he was knocked down by the Defendant's car. In summary, the brain injury has destroyed the Claimant's ability to function in ordinary life; he has impaired anger control, he is impulsive, disinhibited and inappropriate, vulnerable; he has impaired memory, attention and concentration, and is very rigid in his thinking. He has frontal lobe impairment, which affects his ability to plan and think strategically, and which limits his insight into the effects of his behaviour on others.

4. In addition to that major injury, Jake suffered many other injuries and effects of significance. He broke his left thigh and lower leg, and possibly his jaw, and he has loss of the right visual field causing him to bump into objects on that side, he has persistent problems with his right hand and arm causing him to switch to being left handed; he has lost his senses of smell and taste, he has persistent headaches, his hearing in the left ear is reduced so that he has to wear a hearing aid, and he has epilepsy (moderately controlled).

5. Until 1997 the Claimant was managed by the NHS. In October 1997 he entered into an assessment and rehabilitation programme at Daniel Yorath House in Leeds, which is a unit run by the Brain Injury Rehabilitation Trust (BIRT), a charitable organisation. He stayed there until the 29^th April 1998, when he discharged himself. He returned to his parents' home, but that was not suitable (both parents are in poor health), and on the 19^th November 1998 he moved into his present accommodation in his home town. That is a block of five flats run by BIRT, and Jake has a one-bedroomed first floor flat.

6. We submitted that this is a suitable lifetime placement.

7. One of the main issues was whether Jake's present arrangements are appropriate, and whether they will remain so. Professor Barnes, the Defendant's consultant in neurological rehabilitation, saw the Claimant in June 1999. Having recorded various problems, he commented that the living arrangement in the flat seemed reasonable, and was preferable to living entirely independently in the community, and he saw no immediate need to change such arrangements. He later commented on a report by the defence care consultant, Tessa Gough, which had been prepared in 1997, which suggested that the Claimant would or might be able to live independently. Professor Barnes and Dr Barker (the Claimant's neuropsychiatrist) prepared a joint statement, in which they agreed that there is no other local institution available to the Claimant, and that the environment at St Barnabus Way is reasonable and beneficial; living independently would present difficulties in maintaining consistency of care and would present a risk of social isolation - an independent living package is feasible but undesirable. The Claimant is better off in a slightly more sheltered environment. In her report, Miss Gough considered that Jake is well suited in the sheltered housing facility where he currently lives, which she said is often used as a slow stream rehabilitation unit to encourage people to gain independence and move into the community, although this was the first mention of such a prospect for the Claimant. She suggested that the level of care should be reduced in the future, and she canvassed the possibility of the Claimant moving into his own accommodation. It was implicit in the opinions of the other experts that this is a lifetime placement, but that did not seem to change Miss Gough's opinion.

8. The next important issue was as to the level of care required. Our case was that the current situation is reasonable and appropriate, and that the need for care would remain the same. Ms Gough considered that "in the future" four hours a day for five days a week will provide a reasonable level of support, and that "eventually" Jake should manage with the general 24 hour supervision given by the staff at St Barnabus Way. It is now eight and a half years since the accident, and the Claimant has been under the management of BIRT for the last two and a half years. In the longer term, she envisaged a community support worker and night supervision "until Mr L**** was able to cope independently". She did not appear to have re-considered her views in the light of the joint report by Dr Barker and Professor Barnes.

9. Another main issue was likely to be loss of earnings. We claimed that the Claimant would have worked for a local shopkeeper for about 12 months had the accident not happened (he had just been offered that job), and that he would then have obtained an apprenticeship as a painter and decorator. This claim was based on the assessments of the Claimant by his family, as revealed in an extensive range of statements. We acknowledged that, if one looks at the work history of the entire range of brothers and sisters, there is not an overwhelming pattern of employment, but our case was that, if the family were genuine in their opinions (and Jake's sister and her husband, who were managing Jake and the litigation were quite delightful people) that was excellent guidance as to what the Claimant would have achieved.

10. In relation to past care, there was a difference in the assessment of the extent of the family input; we submitted that it would be easy in this particular case to under-estimate the time and effort spent by the family. The picture painted by Jake's sister gave some flavour of the difficulties, and she referred to a diary kept by her. Another area of dispute was likely to be the fact that we had not discounted from the estimated value of professional care to reflect the Housecroft v Burnett approach. We submitted that this is one of those cases where it was not appropriate to make such a deduction.

11. Turning to future losses, the first obvious disagreement would have been as to the discount rate to be used in the selection of the multiplier. The Court of Appeal has resolved this issue against claimants, deciding that the rate should remain at 3% for the present, and the matter is now the subject of the Lord Chancellor's consultation paper. We sought to present a technical argument that the rate should be 2%, in order to preserve our right of appeal. Subject to that, we worked on 3%.

    SETTLEMENT

12. On the first day of trial, the defence offered effectively £1.7 million gross, £1,285,000 after the deduction of 25% for contributory negligence.

13. Our figures were as follows

    Pain, suffering and loss of amenity 120,000

    Interest 18,000

    Past loss of earnings 55,000

    Past care 60,000

    Past transport 5,000

    Interest 68,000

    Future loss of earnings 190,000

    Future professional care 1,073,424

    Future family care 36,366

    Future transport 10,000

    Court of Protection 35,000

14. What was most interesting was that the presence of the defence expert, Professor Barnes (with whom I have edited a book "Medical Aspects of Personal Injury Litigation"), was very helpful in achieving a realistic appreciation on both sides. Also the defence QC was quite exceptionally reasonable (making good points but avoiding bad ones, and demonstrating real sympathy for the Claimant and his family), as were the insurers. It was an excellent example of how well the system can work with good will on both sides. The judge approved the settlement.

12th May 2000

BILL BRAITHWAITE Q.C.