In the recent case of ABC (through her litigation friend) v DFT  His Honour Judge Yelton had to assess damages for a Claimant with significant pre-existing learning difficulties.
The Claimant was aged 17 when she was involved in a road traffic accident. She sustained multiple injuries including significant psychiatric and psychological problems. There was a dispute whether she sustained a minor brain injury although the Judge preferred the evidence of the Claimant’s neurologist, Professor Hutchinson to his counterpart, Dr Foster on the issue.
Prior to the accident the Claimant had suffered from significant learning disabilities. At aged 13 she was said to have a reading age of 7. Her IQ two years before the accident was 67. Aspects of her memory were below the first percentile of her peers. She was unable to read time from a clock face.
Notwithstanding these difficulties she was attending an educational unit three days a week and held two part-time jobs, as a barmaid and helping out in some stables.
In respect of her pre-accident position the Judge found she could not realistically ever have lived unaided on her own.
Her predominant disability following the accident was psychological.
The Defendant’s psychiatric expert, principally Professor Declan Murphy argued that with a programme of multi-disciplinary rehabilitation she would revert to her pre-accident state. The Judge found Dr Murphy to be an impressive witness and accepted his evidence, albeit with some modification in relation to the recovery period. The Judge was, however, critical of Insurers for refusing to fund the rehabilitation at an earlier stage. On the balance of probabilities he found that it would take two years from the judgment to recover.
This had a significant effect on her claim which was pleaded at over £7m including £5m for care. While the Judge accepted that some experts had assessed heads of loss on a worst case scenario he still felt the analysis put forward by the Claimant’s care expert was unrealistic in the extreme.
There was a dispute between the parties in relation to the method and costs of administering her damages/Court of Protection Fees. The Defendant’s expert argued the Claimant should have a Trust rather than a Deputy. The Defendant relied on the observations of Mr Justice Charles in Watt v ABC . The Judge found a Trust was both impractical and inappropriate. It would also be unfair on the Claimant’s parents, neither of whom had any expertise in dealing with large sums of money.
Notwithstanding the Judge’s findings on the recovery period the Claimant’s expert still quantified Court of Protection fees at £872,787. Once past losses and rehabilitation were stripped out the award of damages was circa £220,000, and much of this was likely to be spent on purchasing a house within the reasonably near future. The Judge found the sum claimed was grossly disproportionate. It could not be fair to a Defendant or proper in a developed legal system to pay the costs of managing an award of damages which were about four times its capital sum. However, the Judge did not find the figures put forward by the Defendant’s experts to be helpful either although the proper approach would be to come to a jury figure. He awarded a figure of £125,000 for Court of Protection fees, albeit that may also be too generous to the Claimant.
This case demonstrates the importance of a forensic approach to Claimants with significant pre-existing disabilities. It also shows that Rehabilitation can be more than a “tick box exercise” and in the right case Defendants should be prepared to fund rehabilitation, in order to realise gains against future losses. It is noteworthy that while the Judge was critical of the Defendant for failing to fund the rehabilitation they did change their position before Trial and had applied for an adjournment to allow the rehabilitation to take place .
It is difficult to understand how, notwithstanding the Judge’s findings on the recovery period, the claim for Court of Protection fees was so high. It appears the Judge found little assistance from either expert on this issue. It is hoped that more Judges will treat this as a “Jury issue” because in many cases the experts can do no more than guess at the likely future costs associated with managing a damages fund. Another issue in practice, not addressed in this case, is how the Claimant’s solicitors can also act as the Deputy. There arguably creates a conflict where the Claimant’s personal injury lawyers have to advise on offers made by Defendants for Court of Protection fees which the same firm will incur. Some commentators believe this is an area the Office of Public Guardian should address.
If you would like to know more about this matter, please speak to your contacts at Plexus Law:
Philip D’Netto, Partner
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Daniel Clegg, Partner
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