Wednesday, 4 July 2012

All you Wanted to Know about Serious Injury Quantum but were Too Afraid to Ask

No one judgment can address all the issues about quantum in serious injury cases, but by Jove Mrs Justice Swift gave it a good try in Whiten-v-St George's Healthcare NHS Trust. This was a claim by a boy, aged seven at the assessment of damages, who suffered profound hypoxic ischaemic damage and developed a mixed spastic-dystonic severe quadriplegic cerebral palsy as a result of admitted negligent management of his mother's labour and his birth. Whilst liability was not in dispute, just about every issue on quantum was. It is a long, long judgment and of course there is no substitute for reading it all, but here is a list of questions which arise in such cases and the learned judge's answers:

1.     Does the "full compensation principle" mean that if the Claimant proposes an item of expenditure which would meet his/her needs then it does not matter if there is a less expensive alternative?

No. There is a "requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item."

2.   Which Ogden Table should I use to calculate the life multiplier where there is shortened life expectancy?

If you have a conclusion on life expectancy for a number of years (a further 28 years in this case) then use Ogden Table 28. Using Table 1 (or 2 in the case of a female claimant) would lead to a double discount where the conclusion on life expectancy already takes into account all contingencies.

3.   Should I use the basic or aggregate NJC rates for past gratuitous care?

Aggregate where much care has been given at anti-social hours.

4.    25% or 30% deduction to NJC rates for past gratuitous care?

25%.

5.    For future care is calculation on the basis of a 60 week year valid?

Certainly

6.    Should the costs of future care include employers' pension contributions?

Yes they should. 

7. Is a large award for the costs of aquatic physiotherapy (previously known as hydrotherapy) inevitable if such therapy is of benefit to the claimant?

No. Alternatives to £150/session therapy might well suffice and in choosing future accommodation the availability of a local pool will no doubt be a factor for the family. Remember the principle of proportionality set out above.

8.    On the subject of accommodation, should credit be given for the parents' own home/the value to them of new accommodation for their child?

No. Whilst there is some force in the argument that if no credit is given then this gives a windfall for the parents, the better view is that the claimant should not be penalised in his award for the incidental benefit to the parents of providing the claimant with the accommodation he/she needs.

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