MS
SETTLEMENT REPORT
Boy of 9 running across road - liability agreed at court at one third
Settlement approved at £1 million (representing £3 million at 100%)
The Claimant was aged 9 at the date of the accident in 1995, and 18 at settlement
of quantum in 2004.
The Claimant sustained a very severe brain injury, the effects of which were summarised
by Dr Rose, the Claimant's expert, as meaning that he will always require 24 hour
supervision, and will not be able to work. "He is going to be a difficult young
man to manage". Dr Bates, the defence expert, last saw the Claimant over three
years ago. He predicted improvement as the Claimant gained maturity (which was
not predicted by other experts, and which has not occurred). Both Dr Rose and
Dr Brooks, the Claimant's neuropsychologist, disagreed strongly with Dr Bates's
prognosis for improvement.
It is quite common for improvement to be predicted for young children who have
sustained traumatic brain injury, but experience seems to show that it may not
occur. Families often find it difficult to accept that there is a problem when
the child is young, because they can put the deficits down to tender age, or slow
maturing, and sadly it sometimes takes years for them, and others to realise that
there have been severe effects from the accident. Claimants' personal injury lawyers
should take special care to ensure that they have obtained opinions from true
experts in traumatic brain injury, long term outcome, and paediatric assessment.
Such experts are few and far between.
The major issue was about future care. Maggie Sargent had costed for a 24 hour
package at £93,000 a year, whereas the defence expert seemed to start at about
£20,000, on the basis that the Claimant's mother would continue to look after
him long into the future. This was her opinion despite the obvious evidence that
mother was finding the task increasingly difficult (her son is about 6 feet tall,
and heavy with it, and occasionally violent).
We were confident that the defence expert's evidence would be rejected by the
court, and we made no discount for the risk that she would prevail.
The only really important issue was when the Claimant's mother would implement
a 24 hour package of care, and whether it would include a night sleeper. The element
of uncertainty which always intrudes in these cases is that it is exceptionally
difficult for a parent to predict precisely how their lives will unfold, bearing
in mind that they may be getting different advice from various experts, and that
they may feel constrained in their actions and decisions by the continuing court
proceedings.
The Defendant raised the following issues in relation to care.
1 Because the mother had received an interim payment, the amount of care she had
arranged by trial was indicative of her need. This argument ignored the fact that
the local authority had been exceptionally poor in providing care, to the extent
that judicial review proceedings were brought against them. The Claimant's father
had left shortly after the accident, and so mother had to cope on her own, and
found it very difficult. We considered that the defence argument was bound to
fail, and gave no discount for it.
2 Mother would provide the majority of the Claimant's care for many years to
come: we rejected this also because, if she was given the choice (which the
compensation would do), she would go back to work.
3 Because the Claimant would recover only one third of the full entitlement, his
mother would be in breach of her duty to safeguard his money if she put a full care
regime into place; that was an insensitive and ineffectual argument, which we
considered was bound to fail.
4 The Claimant had failed to mitigate his loss by refusing to undergo rehabilitation.
As it was the effect of the brain injury which caused him to behave as he did, this
seemed a hopeless argument.
5 The future care of the Claimant should be regarded in the context of the care to
which he is statutorily entitled. This is becoming an old chestnut, and there are
now several decisions on the point. It is a point which is unlikely to succeed
unless there is strong evidence that the local authority or health trust is providing
sufficient care of good quality, or will do so. Even in those circumstances, it may
well be possible to persuade a judge that it is preferable for the claimant to have
private care, because then he will not be subject to the vagaries of an outside body
making decisions affecting the claimant and his or her family.
The judge approved the settlement at £1 million, and the application for approval
made on the morning of trial, set out the following figures
Pain, suffering and loss of amenity, inclusive of interest 140,000
Past loss
Earnings 101,000
Care and case management 23,000
Miscellaneous 5,000
Interest 42,000
Future loss
Earnings 482,000
Accommodation 175,000
Running costs 60,000
Holidays 30,000
DIY/gardening 20,000
Care 2,300,000
1 April 2004
BILL BRAITHWAITE Q.C.
Exchange Chambers Exchange Chambers
Liverpool Manchester