Case report – Infant settlement

October 31, 2018

By Gerard Martin QC

The case is subject to an anonymity order.

In early September this year the High Court approved terms of settlement on behalf of my infant Claimant involving a lump sum of £9,000,000 and periodical payments of £325,000 for care and case management, which when grossed up came to a little over  £20 million. There are points of interest to personal injury practitioners in this case.

For example, the whole of the case was handled by the parties on a consensual basis with minimal involvement of the courts. This was a highly complex severe brain injury claim for an infant which was concluded within 5 years of the date of the accident. Rehabilitation was funded by an agreed system of regular substantial interim payments £75-90,000 per quarter, and a system of rolling disclosure of rehabilitation documentation. The system worked well, the accident was in 2013, by 2015 liability was agreed at 95%, a discount given to move the case on from liability issues and focus on rehabilitation, and the liability settlement approved by Foskett J in 2015.

Life expectancy was agreed as to age 44 years in view of the severity of the injuries sustained so this was a short –life case.

At the outset of the JSM we made clear to our opponents we were only prepared to advise by valuing the case using a 0% discount rate.

The Claimant was 4 years old when injured as a pedestrian in a road traffic accident in the summer of 2013. Sadly, the Claimant suffered life changing injuries – dyskinetic athetoid quadriplegia. It was our case that he required from now when only 10 years old, two to one care at all times during the day and one waking and one sleeping night carer. We were firm in expressing our confidence that a court would award such a system, given the Claimant’s need for assistance in every activity he wished to undertake and his unpredictable ability to assist himself in those movements. It was essential for his own autonomy and dignity that the care package to be provided would facilitate his wishes spontaneously rather than await the arrival of the necessary support, hence the size of the periodical payments at £325,000. As long ago as 2006 Lloyd – Jones J in A v B EWHC 1178 had recognised in allowing two to one care the importance of autonomy, dignity and spontaneity in the delivery of a support package.

By reason of his injuries the Claimant had lost his power of speech and relied on alternative methods of communication with assistive technology (eye gaze), more simple methods (his communication book) and by the family knowing what the Claimant intended by the sounds he articulated. Despite all his difficulties he retained the capacity to enjoy life and have fun and create fun for those around him.  It is a tribute to the client’s personality and resilience, together with the remarkable contribution made by all of his family, but particularly his parents, that he has done so well.

His parents determined to preserve his pre-accident lifestyle post-accident, travelling and holidays had been an established part of that lifestyle and continued to be an important part of their lives. Thus post-accident the family of two parents and four children went on many adventurous holidays with the help of the holiday care package, usually three carers, although often the family found they needed more help and the carers themselves were always exhausted at the end of each holiday. All the family including the Claimant have enjoyed skiing in Europe, going on safari in Africa including transport in part by light aircraft and overnight camping in the bush, and visiting Brazil. The claim for future holidays included the need to take six support workers on long haul holidays. My valuation of the claim for future holidays came to a little under £1 million. The fact that the family went on such holidays, enabled us to prove within the claim the need for at least three carers to accompany the family, but in reality even three carers were insufficient given the demands placed upon them. It was crucial to the presentation of this claim that the parents had the personalities and also the private funds to go on the above holidays. The compensation we have obtained will help to ensure that the claimant is returned to his pre accident family holiday lifestyle.

As a separate head of claim we sought the repeat costs every 10 years of a customised motorhome at £147,650 per purchase. In addition we required an adapted Caravelle for day to day transport. It was of assistance that such claims have been awarded in earlier cases, see Foskett J in the Robshaw case. It also was of evidential value that by the JSM a deposit had been paid by the family to secure the first purchase of their motorhome, the vehicle could sleep the whole family (6 people) and meet the Claimant’s needs (eg wetroom and hoists) as a wheelchair confined quadriplegic passenger.

With regard to education costs, the parents were not satisfied that the special school attended by their son was meeting all his educational needs and they thought because his communication issues were so difficult he was being left behind. With great energy and determination the parents applied for and obtained local authority funding for home tuition three days a week and attendance at mainstream school two days a week to facilitate social contact with other children. The Claimant’s mother had secured a substantial budget from her local authority for home education. We claimed all the costs of education from the insurer and in return undertook to repay that funding which we obtained now and in the future from the state.

The claim for accommodation was substantial, this was a family of two adults and four children requiring a substantial bungalow living in the south east of England, a suitable bungalow was found to rent in the final years of the claim whilst the search continues for a property to purchase. Despite all the legal uncertainties surrounding this head of claim our valuation of this head of loss came to a little over £2 million.

The court has approved the settlement as reasonable. I have no doubt that without the consensual system of litigation the case would have continued for at least another two years and the parents have thus been spared the further attrition to the family well-being that continuing litigation causes. The Defendant’s legal team and their insurer client have within the bounds of their professional duties facilitated this fair and reasonable outcome. The Claimant’s costs of the case have been agreed, at a sum far less to the insurer than to be expected from more adversarial litigation.

None of the above could have been achieved without the determination and strength of the parents in this case, nor the very great skill and expertise of my instructing solicitor, Julie Reynolds. The compensation cannot replace that which the Claimant and his family have lost, caused by the injuries sustained, and their journey onwards will be difficult. Hopefully the award does provide some reassurance that the Claimant’s lifetime needs will be met financially. This remarkable family can now put the pressures of litigation behind them and move on.