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Compensation in cerebral palsy cases

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    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.

    By Richard Coleman

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

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/financial losses

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:

  • Care.  Compensation can be claimed to cover the cost of a professional person or persons to provide the care needed or to reimburse family members for their time providing that additional care. The compensation will also reflect any likely changes in your or your child’s condition in the future which may change the amount of care required and the costs of this.
  • Aids and equipment.  This can be equipment to help with everyday life such as wheelchairs, adapted cutlery, chairs, lifts/hoists, adapted baths and showers as well as therapy-based aids such as splints, balance balls, standing frames.  This will also include technological aids for instance computer programmes that assist learning and communication, and this in particular is a developing area with advances in new technology all of the time.
  • Accommodation.  If the injured person cannot use stairs safely (or at all) it may be necessary to move to a bungalow and/or adapt any accommodation so that it can be safely used.  Associated costs of moving can be claimed and also environmental aids such as remote controlled curtains and heating, as well as any increased heating and utility bills, council tax etc.
  • Therapies.  Often the treatment a person can obtain on the NHS or through Social Services is limited and does not properly cater for their needs.  We can claim for enough money to purchase sufficient therapies such as physiotherapy, occupational therapy, speech and language therapy and/or psychological therapy.
  • Transport.  Not only will there invariably be costs of attending various medical appointments, often the ability of the injured person to travel independently will be severely affected.  They may need, for instance, a specially adapted car that can take an electronic wheelchair, or a hoist, or is adapted to allow the injured person to drive themselves.  Additional insurance costs can also be claimed.
  • Holidays.  Invariably when someone has a disability there is an increased cost.  Holidays are a prime example.  Wheelchair accessible rooms with adapted bathrooms often cost more to hire and if a carer (or carers) are needed to accompany the injured person, extra rooms will need to be hired and additional seats on airplanes etc.
  • Loss of earnings.  If, because of their injuries, a Claimant is likely to earn less (or indeed is not able to work at all) than what would have been the case then those lost earnings can be reclaimed.
  • Pension loss.  Often linked to the loss of earnings will also be a loss of what the injured person could have expected as a pension at normal retirement age.
  • Educational costs.  It may be that the most appropriate school now for the injured person will be a private school and the costs of that would be claimed or an appeal to a Special Education Needs tribunal has to be funded because the amount of extra assistance the LEA assess they need is too low.
  • Deputyship costs.  If the injured person is unlikely to be able to manage their own financial affairs as an adult then costs will be involved in managing their compensation.  These can also be reclaimed.

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.

Periodical Payments and lump sums

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.

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