In the ninth of our series of articles focussing on all aspects of legal claims for adults and children with cerebral palsy, Richard Coleman explains how compensation is assessed in claims for adults and children with cerebral palsy.
The purpose of compensation is intended to put the Claimant in the same position that they were in before they were injured by the negligence.
Clearly money cannot do this properly, it cannot repair damage to the brain, but it can provide for such things as aids and equipment or additional care that will help the injured person maximise their life following injury.
Broadly speaking there are two main elements that make up the quantum of a claim in England and Wales and these are known as: ‘general damages’ and ‘special damages’.
General damages is compensation to reflect the pain, suffering and loss of ability to do things caused by the actual injury. It also includes psychological suffering caused by the negligence. Understandably, this is a very difficult thing to value so the Judicial College has provided a set of guidelines (taken from looking at past awards) to judges to try to provide some consistency on valuing pain and suffering. For brain damage leading to cerebral palsy the guidelines recommend various different awards depending on how severe the injury is, how much it affects the person’s ability to think, talk, use their arms and legs, see, hear and basically function on a day to day basis.
As an example, for very severe brain damage leading to very little ability to think and move and communicate, double incontinence and the need for full time nursing care the recommended amount of general damages is between £235,000 to £337,000.
Most people are surprised at how relatively little the award for the actual injury and its effect on the person is. The larger part of any claim where the injured person has cerebral palsy as a result of negligence is for special damages, which I discuss next.
Special damages is the amount the injured person requires to pay for things that they now need because of their injury and disability and to reimburse them (or their family) for any expenses they have incurred because of the injury. Such things are easier to put a value on, although there is still a lot of uncertainty involved because the compensation award has to last the injured person all of their life and be just enough to cover all of those expenses.
We therefore have to try to predict what expenses an injured person is likely to incur and what things they will need to buy for the whole of their life and this also means trying to predict how long their life is going to be.
We are assisted in this task by obtaining reports from independent experts such as occupational therapists, paediatric neurologists, architects, nurses and physiotherapists who can advise on the types of aids and equipment the injured person needs and the cost of the equipment, or the amount and cost of therapy, based on their experience of working with children and adults with similar injuries.
Typically in a claim for a person with cerebral palsy as a result of negligence we would be looking at compensation to cover the following lifetime expenses/needs:
Sometimes the experts will be unable to predict what an injured person will need because they are too young and there are too many uncertainties and in those cases the claim will often be put on hold until a better prediction can be made.
If there is a lot of uncertainty over, for instance, the life expectancy of the injured person (which is naturally very difficult to predict) then rather than calculate a lump sum that is suppose to cover all of these expenses/losses, some items (usually care and earnings) may be separated and an annual amount/need/loss agreed upon which is then paid for as long as the injured person lives, with the rest of the award being paid as a lump sum.
Indeed even when there is less uncertainty over the future it can often be better to treat care (and possibly loss of earnings) in this way because the annual awards can be linked to an appropriate index (such as RPI or an average earnings index) that mean they will keep pace with the cost of paying for care, for instance, in the future. If the compensation is paid all in one lump sum the injured person is then reliant on getting enough interest on the compensation to cover the annual increase in the cost of living. With current low interest rates that is almost impossible to do and therefore annual payments are more secure for the injured person. In the majority of claims for adults and children with cerebral palsy the costs of care are paid annually, referred to as a periodical payment Order, with the rest of the compensation paid as a lump sum.
The most important point to note is that every claim is different and time needs to be taken to establish the specific needs of the injured person and ensure that the compensation ultimately paid is appropriate for them and sufficient for their lifelong needs. My colleague Tracy will explain in tomorrow’s blog what happens after a claim concludes and how compensation is managed.