T. W.(a Patient)

and

R. S.and B. H. A.

SETTLEMENT REPORT

Extremely severe brain injury

Settlement of 2.5 million

Approved by Gross J. in October 2001

1. The Claimant was aged 7 at the date of a road traffic accident and 24 at the time of settlement. Liability was not in dispute. Twenty four days before trial the Defendants increased the sum paid into court by over £1 million to £2.5 million. There was no discussion as to the breakdown of that sum with the Defendants, but the approach to settlement set out below was approved by Mr Justice Gross.

2. The Claimant sustained severe brain injury resulting in major cognitive difficulties and behavioural problems. In addition, she had neurological impairments causing difficulty in walking and clumsiness of hand movements. She had sustained post-traumatic epilepsy. The Claimant also sustained a fracture of her right femur, requiring surgery which left her with keloid scarring.

3. Loss of earnings: The Claimant was Chinese and the youngest of four children. Her parents ran a take-away restaurant. Her three older brothers had all been educated to degree level. They were clearly ambitious, entrepreneurial and achieving at a high level. All had chosen to work outside the UK. It was accepted that the Claimant would have pursued a professional career but the level of likely earnings was disputed. The claim was put forward on the basis of a range of illustrative careers. The Claimant has no residual earning capacity.

4. Care: The Claimant had been cared for at home initially and had spent time in various residential schools. She had been accommodated by the Brain Injury Rehabilitation Trust since February 1998. At the date of settlement, she was occupying a single-occupancy flat attached to a unit at an annual cost of £67,000. It was anticipated that she would remain with BIRT. for the foreseeable future but it was hoped that she would move on to a shared home with support from BIRT staff and then to her own accommodation with her own staff from BIRT. The Defendants sought to put forward various alternative residential placements, none of which was considered suitable for this Claimant. The future costings were not entirely clear but for the purposes of settlement, it was assumed that the annual costings would remain the same for the next couple of years or so and would then reduce to £40,000.

5. There was a dispute in relation to life expectancy. A reduction of 3 years was accepted on behalf of the Claimant on the basis of the neurological evidence. This produced a multiplier for life of 30.84. The Defendants had contended for a reduction of up to 10 years on the basis of their neurological evidence. The issue was complicated by evidence that the Claimant had contracted the Hepatitis C virus. The Defendants obtained evidence that this would reduce her life expectancy by 30 years. The Claimant's expert did not agree that there was any significant implication for life expectancy. For the purpose of considering settlement, a multiplier of 27 was assumed.

6. On the basis of the above, our figures were as follows:

Pain, suffering and loss of amenity: £150,000

Interest: £ 50,000

Past loss of earnings: £25,000

Past care: £270,000

Past miscellaneous: £87,000

Interest on past loss: £110,000

Future loss of earnings: £750,000

Future care: £1,134,000

Case management £10,000

Court of Protection/ £100,000

fund management

TOTAL £2,686,000

7. The above figures represented a realistic assessment of the Claimant's case on the assumption that we would win all the major issues. Risks of litigation existed in relation to life expectancy, the level of future earnings and, to a lesser extent, the future care plan. Taking these risks into account, the sum of £2.5 million appeared to represent a sensible and fair compromise. The Claimant's parents were anxious that their daughter should not be moved from her current placement (as had been proposed by the Defendants). The settlement provided for her to remain with BIRT for the rest of her life.

Bill Braithwaite Q.C. and Amanda Yip were instructed by Ian MacAllister of Davies Wallis Foyster, Manchester.

AMANDA YIP

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