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Life expectancy is rising in England and Wales but compensation can be guaranteed to last a lifetime for cerebral palsy claimants even when 24 hour care is needed.
The Office for National Statistics suggests that life expectancy in England and Wales has increased by more than a year in the last decade, with women now expected to live to 82.8 years and men to 78.8 years on average. Life expectancy has continued to rise consistently now over a long period, and this raises many issues for an aging population. But it is also an important issue for people who bring claims for medical negligence.
Medical negligence solicitors used to be very concerned, especially when assessing cases for children with cerebral palsy, that damages might run out before the end of a claimant’s life. This was a particular concern in such cases, because they relate to very severe injury, where the claim would include damages for ongoing care for the claimant. In a birth injury claim, where a child has cerebral palsy as a result of negligent care at the time that they were born, the child might need 24 hour care for the rest of their life and the damages award would provide for that. But what if the child’s life expectancy had been assessed at 60 years and she lived to 70? Would that claimant have to manage without care for the last 10 years of her life?
In cases brought today, the problem is solved by the use of periodical payments. These are annual payments made for the benefit of the injured person, at a sum agreed between the parties, or ordered by a Judge. Usually they are awarded for the care element of a claim, which can be a very large annual figure in a cerebral palsy claim (often over £100,000 per year).
The beauty of periodical payments is that they are awarded for the lifetime of the injured person, so they cannot run out. There are other benefits too. They are not taxable, and they ensure much greater predictability for those who may be managing the injured person’s income.
As life expectancy rises, so will damages awards. It is not an increase in real terms, though; it’s just that the money needs to stretch over a longer period.
The Clinical Negligence Team specialises in birth injury claims, and has obtained tens of millions of pounds of damages for children with cerebral palsy and similar conditions in recent years. Because of the way these claims are structured, with the use of periodical payments, all these children are guaranteed to have enough money available for a lifetime of care, however long they may live, which is vitally important.
In a very recent cerebral palsy claim settled by the Clinical Negligence Team, periodical payments were obtained for the child claimant for his lifetime. Our client, a six year old boy, was awarded a lump sum of £2.6 million, together with annual periodical payments of £125,000 to age 11, rising to £155,000 each year from age 11 to 19, and then rising again to £240,000 each year from age 19 to the end ofhis life. The family have peace of mind that their young son will be properly cared for throughout his life, even if he outlives his parents, which it is expected that he will, and there is no possibility of an end of life shortfall.