TJ
and
MH
CASE REPORT
Very severe brain damage
Settlement approved at £3.65 million
Note: the figures set out below were what we felt should be achieved at
trial; they were not agreed by the defence. The judge approved the overall settlement
figure.
1. TJ was born in 1985 and so was 8 at the date of the accident in1994. He is
now 16.
LIABILITY
2. Judgment was entered in 1999.
QUANTUM - Pain, suffering and loss of amenity
3. The Claimant sustained a very severe brain injury which has affected
every aspect of his life; he will never be able to live independently, or work.
Additional effects of major importance are reduced mobility, the inability to
speak easily, and visual defects which will severely compromise his ability
to function as an independent human being, and are so severe that he would need
help with the simplest of tasks.
4. There was a fundamental difference between the parties in relation to damages
for pain, suffering and loss of amenity; the defence figure was £125,000, whereas
we contended that an appropriate award would be £185,000. The Defendant relied
on the wording of the JSB Guidelines to suggest that this was only a moderately
severe brain injury, but we suggested that it is difficult to imagine worse
results, particularly bearing in mind the Claimant's youth when injured. It
was agreed that the Claimant will deteriorate in middle age, either for orthopaedic
reasons, or because of premature cerebral ageing. He will always be incapable
of managing his affairs.
5. Life expectancy was agreed at a reduction of 6 years.
6. The figure would have been agreed, had the case proceeded, at £175,000.
QUANTUM - financial loss
7. It was accepted by the Defendant's paediatric neurologist that T
should be able to live in his own home with the appropriate
level of care, and the Claimant's neurosurgeon felt that it would be preferable.
The family have moved into a bungalow (after much heart searching by Mr and
Mrs J, who were very happy and well-suited where they were), which is intended
to be T's home for the rest of his life. Their choice was approved by the joint
architect. T has a ground floor bedroom with suitable ensuite facilities, and
an adjacent carer's room.
8. The major issue appeared to be the method of calculating the cost of the 24
hour care which T will always need. The Claimant's care expert
calculated on the basis that the care will be bought at an hourly rate, as is
done at present by direct employment of the carers, whereas the defence expert
asserted that the care could be provided by an agency at considerably less cost
(even though the family had tried agencies without success).
9. At a very late stage, in fact at midday on the morning of trial, it was revealed
that the defence expert agreed that direct employment was agreed, and all that
was left was an issue as to the cost of providing the care needed. We estimated
that at £2.2 million.
10. There was a significant difference in the valuations of future loss
of earnings. We suggested using teachers' earnings as a basis, subject
to the argument that the Claimant would have earned more than his father, who
is a teacher; this depended on the evidence of the parents, whom we put forward
as people of integrity who were qualified to give a realistic estimate of how
their child would have achieved had he not been deprived of the opportunity by
the Defendant's negligence. We emphasised that, by selecting teaching as a guide,
we deliberately reduced the level of this claim, in the sense that it would have
been possible to assert that T would have gone into one of the other professions
(eg doctor or lawyer, where earnings are arguably significantly higher than in
teaching). The Defendant argued in the Counter-schedule that a low average should
be taken, and that retirement at 55 was a realistic option. The claim was put
at £621,000 in the Schedule, which we reduced to £500,000 for settlement.
11. There were various other heads of claim, one interesting one being that we
separated the father's time spent on caring for his son from time spent administering
his affairs, which in turn was treated differently from time spent dealing with
the Court of Protection (which he said was extremely difficult). There was a claim
for the cost of attending a brain injury conference, suggested by the case manager,
which we expected to win, and for music therapy, and for the cost of insuring
the parents' lives and health against the difference in the cost of family and
professional care.
12. The final settlement, offered after the case had been opened, was £3.65
million.
13 June 2002
BILL BRAITHWAITE Q.C.