OAC’s case – the need to “wait and see” before attempting settlement

May 31, 2024

Author: Gerard Martin KC

This case was recently approved following a joint settlement meeting where the terms of settlement were that the Claimant (C), a protected party, was to be compensated by the payment of the lump sum of £4.5 million. The date of accident was  in 2005. C met with her accident as the infant back seat passenger restrained in a child seat, when a car driven by her father was involved in a collision with a lorry. C’s father was severely brain injured in the accident. C at the time was only 15 months old, she was born in 2004, she is now 20 years old. Proceedings were issued in March 2013.

Following the collision, C had been initially unresponsive as her mother recalls, but was alert by the time the ambulance team assessed her. A CT scan of the head revealed a right frontal depressed fracture with a scalp haematoma, but no intra cerebral contusion was seen and no intra cranial abnormality was evident. She was admitted for overnight observation and then discharged home the next day. She was reviewed in clinic 2.5 years later by a consultant neurosurgeon and was said to have made a good recovery. If we pause at this point in the case when C was 4 yrs old, and ask what evidence of the severity of brain injury had been revealed, the temptation would be to describe it as moderate, but that would be an error. The red flag would be the presence of a depressed skull fracture, which even on its own without more, would qualify as a moderate injury on the Mayo scale. One can see on the paucity of evidence at this point of the severity of the injury, that this is a case that could have been under-settled, had an attempt to do so been made at this point.

However, by age 5 years, C’s mother had noticed C had not regained fluent speech, was clumsy, and was struggling with learning, and exhibiting challenging behaviour. Over the years that followed, C’s brain injuries became more manifest. In September 2013 an MRI of the brain showed no abnormalities. However, in November 2013 Dr Albert Reid found clear difficulties with executive function and processing speed and working memory was low average. In 2017 she was assessed by a paediatric neurologist who advised her brain injury was moderately severe. C was by now 12 years old, the neurologist advised that her learning and behavioural difficulties were a significant threat to her long-term prospects for education, employment and independence. This prognosis has largely proved true, but that is not to say that C, with the devoted care of her mother and other family members, has achieved much of which she can be proud. C obtained sufficient exam results to attend university. Her first attempt at university failed, C had difficulty with relationships whilst flat sharing, attempts at part time work failed again through her relationship difficulties and she returned home.

At home, living with her mother she rebuilt her confidence to try again, this time at a local university where she could come home at weekends. Living with C is difficult, her mother describes it as like “walking on egg shells”, fearful for the next outburst of temper. Despite all the difficulties presented by the brain injury, C has passed her first year with a 2:1 with two years to go before she can achieve a degree. Whether she will pass on to succeed in open employment remains unclear. She will always need support; her mother wants to hand that burden over to paid support workers. She will need even more support when she has a child. There has never been a time in the past when C has accepted a sustained period of paid support, relying instead heavily each day upon her mother.

In the negotiations we had sought the payment of C’s care and case management needs by way of periodical payments. The request was refused by the defence insurer. If we wanted such an order then a trial court would have to order them and trial was at about two years away. In the meantime, the paid care system would have had to be trialed, with no sustained period of such care ever having taken place. C had a history of failing to engage with those she did not take to, she also could not tolerate the intrusiveness of the evidence gathering needed for the case via expert examinations and other case worker involvement. There was a real risk C would not accept a paid care system of support in this case. All C wanted was to be regarded by all as “normal”, understandable for any 20-year-old, but more so for one who was being told she had a brain injury which would negatively affect her life. C wanted to prove this was not the case. This made the prospects for a successful trial of independent living with paid support as less than positive.

The other disincentive to carrying on to a trial two years hence was the real risk of a change in the discount rate, the counter schedule contended for 1% multipliers and on their calculations such a change would produce a reduction in damages of £750,000 on the present figures. We will not know until January 2025 what the discount rate will be, but we advised this risk was very real and best avoided if reasonably possible. The lump sum settlement was approved by the court.

The case is a good example of the importance of a mother and her huge contribution to the rehabilitation of her daughter. In this case the mother accepted the wise counsel of her solicitors not to settle the case in the early days, or for that matter in C’s teenage years. We had to wait and see how the brain injury affected C’s young life, her ability to live on her own, form relationships, achieve exam success and whether she would be able to work. It was only recently that we were able to formulate a firm opinion on what C was likely to achieve.

That she has done so well is a testament to her mother who has supported her every step of the way, and to C’s solicitor Deirdre Healey of Irwin Mitchell, Manchester, who has supported the mother throughout in a wise and insightful way.