KIRSTIE DALLOW
and
SHROPSHIRE HEALTH AUTHORITY
APPROVAL OF SETTLEMENT
WX035017
1. Miss Kirsty Dallow was born on the 31st January 1983 and so
is now 24. She was injured catastrophically at birth by the negligence of the
Defendant.
2. The trial was to be on quantum only. The Defendant made a Part 36 offer
of £1,825,000, plus periodical payments of £160,000 a year, about a month before
trial. The Claimant, through her litigation friend, accepted that offer, and
the settlement was approved by Mrs Justice Cox on the 12th March
2007. The capitalised value of that offer is about £5.6 million.
3. The Claimant suffers from cerebral palsy, which causes her significant physical
and mental disability. She can walk in a clumsy fashion, for a short distance,
and can undertake standing transfers with the help of carers. She has marked
involuntary movements of her arms, and therefore very little ability to use
her hands and arms for functional purposes, for example feeding herself. She
cannot verbalise to any significant degree, although she can say some words.
However, her understanding is good, within the limitation that her understanding
is at the level of a six year old, and her family and carers can communicate
with her.
4. It was agreed between the legal advisers that
1 the Claimant's life expectancy is to age 60
2 the Claimant should offer the Defendant a suitable undertaking to make sure
that there is no double recovery ie that, following the settlement, the Claimant
cannot obtain care or accommodation payments from the local authority without
accounting for them to the Defendant.
5. On the evidence, it was agreed that
1 Kirstie will never be capable of competitive, paid employment
2 she will never have capacity to manage her affairs
3 the current family home is unsuitable
4 the house which had been bought on her behalf was bought at a reasonable price,
and was and is suitable for adaptation.
6. It was agreed that, at least at some times during a 24 hour period, Kirstie
needs two carers (Dr Rosenbloom). Professor Barnes said that there needs to be
an overnight sleeper, coupled with two carers, with some overlap being taken into
account, but that because Kirstie is reasonably confident with standing transfers
with one person, she does not need two carers for all her waking hours. Mrs Sargent
costed for 24 hour care at the rates quoted by CPA. Ms Lawrence, for the Defendant,
used "local rates paid to carers in the Oswestry area", and costed for a package
of 14 hours a day, plus an overlap of one hour morning and evening, plus an additional
four hours a day for a second carer, producing a figures of £90,529 (costing 1).
As an alternative, she used the rates she says are quoted by CPA, which gives
a figure of £103,328 (costing 2).
7. The Schedule claimed about £4.4 million for future care, whereas the Counter-schedule
put the figure at between £850,000 and about £1 million. Almost every aspect of
the care claim was put in issue.
. It was obvious that, if we lost the care issue, the claim would plummet in value,
and there would be a costs risk.
. There was an additional issue, raised by Ms Lawrence, which was whether Kirstie
will live in a group home. Various places were mentioned by Ms Lawrence, but the
family view was firmly against that option, which Ms Lawrence says would cost
about £110,000. I felt confident that that suggestion would not prevail.
. Although the Defendant's Part 36 offer did not include this, the Defendant agreed
that the indexation of periodical payments could await the outcome of Thompstone.
We considered that carefully, because it has obvious advantages, and initially
advised the Claimant's litigation friend, Mrs Edwards, to adopt that course. However,
following discussion with the financial adviser, Mr Gunn (whose partner, Mr Cropper,
was the Claimant's expert in Thompstone), and consultation between the
legal advisers, we all agreed that in this particular case it would be advisable
to achieve final closure, and we advised the litigation friend that, in the particular
circumstances of this case, it would be appropriate to abandon the link to Thompstone,
even though that meant linking to RPI. It is perhaps worth remembering that the
outcome of Thompstone in the House of Lords is far from certain.
15th March 2007
BILL BRAITHWAITE Q.C.
