Periodical Payments - Indexation
The Claimant in this case was aged 19 at the date of trial and 12 at the date of accident in 2000.
She sustained very severe brain injuries in a tragic RTA in which 2 of her siblings died.
Although she made quite a good recovery in some respects she was left with very significant cognitive difficulties and significant disturbance of executive function as a result of the damage , particularly to the frontal lobe.
She has a significant need for support and assistance which was not easy to predict.
The case ultimately settled partly by way of lump sum (to include a significant amount for contingencies which might increase the amount of support and assistance required) together with periodical payments of £50,000.00 from 2009 index linked to ASHE 6115 at the 80th centile.
The case settled part way through the trial after the Claimant's lay and medical evidence and immediately after the evidence of Victoria Wass, labour economist. The Defendant served no evidence on indexation and had sought to adjourn the issue but failed in that regard. In evidence adduced for that purpose they had suggested that the appeals in Thompstone and other cases should be heard before the issue was decided, it was said to be unnecessary for the Defendant insurer to be heard on the issue in the Court of Appeal since they had "a complete identity of interest" with the NHSLA on this issue.
This is thought to be the first occasion on which PPs linked to an earnings based measure have been awarded, by consent, against a general insurer. It may represent a sea change in the insurance industry's approach to this issue. It is clearly of importance to all who practise on the field.
Another point which may of interest to practitioners is that the Defendant conceded in her counter-schedule the Claimant's entitlement to recover the costs of setting up and running a professional trust in order to manage her damages even though she was found to have capacity. The weight of the medical evidence was that although the Claimant technically met the legal test for capacity she would remain vulnerable to exploitation from others. The Claimant's case was supported by a statement from a solicitor specialising in trust law and whilst the precise figures were disputed, the principle that this was a recoverable head of loss which would not otherwise have been needed but for the negligence was agreed.
Counsel for the Claimant: Gerard McDermott QC, Outer Temple Chambers, William Latimer-Sayer, Cloisters
Solicitor for the Claimant: Stuart Dench, Stewarts Law.
Counsel for the Defendant: Richard Lynagh QC, Crown Office Chambers, Oliver Ticciati, 4 Pump Court , Suzanne Chalmers , Crown Office Chambers
Solicitor for the Defendant: Bilal Mirza, Clarke Wilmott.