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7 October 2015
High Court, Queen’s Bench Division
The Court approved the agreed settlement of this claim for personal injuries by a protected party arising from clinical negligence in 1991, where it was satisfied that the settlement figures, and the structure of the settlement, are such that it met the claimant’s basic needs.
The claimant, born in 1986, sustained substantial injury before her birth and was born with cerebral palsy, which was not attributable to any negligence. In 2001, the claimant suffered a heart attack and significant brain damage, caused by inhalation of gastric contents, whilst under the care of the defendant. The defendant admitted liability and causation in pre-action correspondence and a settlement was agreed, to include periodical payments to cover the care and case management for the future.
The court considered its purposes in deciding whether to approve a settlement, including: to safeguard the interests of protected parties; to ensure that defendants are able to obtain a valid discharge from such a claim; to make sure that money recovered is properly looked after and wisely applied; and to protect the interests of all dependants. Having considered advice from counsel, the court approved the figures and the form of the draft order.
Provides a guide to best practice in the complex area of catastrophic injury litigation
The court highlighted in particular its duty to consider whether the form of award, either periodical payments or a lump sum, chosen is the one which best meets the claimant’s needs. The court found that the parties were right to opt for periodical payments in this case, as it ensures security for necessary payments for care throughout the claimant’s life and is more advantageous than a lump sum, which would be calculated on the assumption of 2.5% return, which is not available now or likely to be for some time. The court was therefore satisfied that the settlement figures, and the structure of the settlement, best met the claimant's needs.
The judgement usefully sets out, in a logical order, the various issues that the court must take into account in determining whether or not to approve a settlement of a protected party in a clinical negligence claim.
Kim Pryce & Louise Taylor, Anthony Gold