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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 09 JUN 2014

Future Care and Case Management – Farrugia (a protected party represented by his mother and litigation friend Lorraine Farrugia) v Burtenshaw and others

Future Care and Case Management – Farrugia (a protected party represented by his mother and litigation friend Lorraine Farrugia) v Burtenshaw and others

Catastrophic Injury – Future Care and Case Management – Life Expectancy
– Periodical Payments - Future Care and Case Management

Jack Farrugia (a protected party represented by his mother and litigation friend Lorraine Farrugia) v (1) Steven Burtenshaw (2) The MIB ( in substitution for Zurich Insurance Plc) (3) Quinn Insurance Limited [2014] EWHC 1036 (QB)

High Court, Queen's Bench Division

Mr Justice Jay

8 April 2014

Summary

The court assessed the care and case management needs of a catastrophically injured claimant who required 24 hour care.

Detail

On 7 November 2008, the claimant, a 17 year old keen footballer was seriously injured whilst a restrained front seat passenger, when the first defendant lost control of his vehicle.He suffered a very severe traumatic brain injury and was left with multiple neurological impairments.This included profound communication and physical disabilities requiring total nursing care and artificial feeding.Liability had been resolved in the claimant’s favour by the third defendant.The parties had agreed the majority of the issues regarding quantum save for the future care and case management and few other matters.

The parties agreed that the claimant needed 24 hour care but they did not agree as to the level of daytime and night time care needed. In addition, the judge had to determine whether the continuity of periodical payments by the third defendant was reasonably secure and if periodical payments were appropriate and also consider the issue of life expectancy.

The judge found that one carer working full time over a 14 hour period for seven days a week and a second carer for 3 days in the week and one day at weekends with gratuitous care catered by family members would be reasonable for the claimant’s needs.The regime was to operate for 48 weeks a year allowing four week’s holiday for the family.The judge allowed hourly rates of £11.50 for weekdays and £14.00 at weekends. He allowed 22 hours per week for a team manager rather than full time and an additional £5.00 per hour for the team leader hourly rate.He allowed 120 hours per annum plus travel for case management at £95.00 per hour. Sowden v Lodge [2004] EWCA Civ 1370, [2005] 1 All ER 581, [2005] 1 WLR 2129 considered.

The judge found that the continuity of payment under any order for periodical payments was reasonably secure.Kotula v Eastern Power Networks Plc (9 November 2012)(unreported) also considered.The judge stated that he had absolutely no hesitation in determining that the claimant’s best interests are served by making of a periodical payments order to cover the two heads of claim in questions, rather than a lump sum.

The judge accepted that there was a 2 % risk that the claimant would develop uncontrolled epilepsy and would require closer supervision and additional special needs.On this basis, he stated it was entirely appropriate to make a variable periodical payments order.The judge also allowed for the enhanced needs of the Claimant in the last 2 years of his life to £277, 878.14 per year from 15 December 2040.

Comment

This is a notable case where the court assessed and awarded a significant sum for the future care and case management needs of a severely injured claimant who required 24 hour care.

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The judge found that the continuity of payment under any order for periodical payments was reasonably secure.Kotula v Eastern Power Networks Plc (9 November 2012)(unreported) also considered.The judge stated that he had absolutely no hesitation in determining that the claimant’s best interests are served by making of a periodical payments order to cover the two heads of claim in questions, rather than a lump sum.

The judge accepted that there was a 2 % risk that the claimant would develop uncontrolled epilepsy and would require closer supervision and additional special needs.On this basis, he stated it was entirely appropriate to make a variable periodical payments order.The judge also allowed for the enhanced needs of the Claimant in the last 2 years of his life to £277, 878.14 per year from 15 December 2040.

Comment

This is a notable case where the court assessed and awarded a significant sum for the future care and case management needs of a severely injured claimant who required 24 hour care.

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