InsightsClient Story - Personal Injury and Industrial Disease - POSTED: June 23 2020
Brachers settles fatal road traffic accident claim for £4.25 million
Brachers has settled a fatal road accident claim for £4.25 million, following a seven-year battle for justice for the victims.
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The case was settled in mid-March by Brachers personal injury specialist, Jeremy Horton, just days before the COVID-19 lockdown started which closed many courts.
The accident happened on 5 March 2013 in Maidstone, when the casualty – known as I – was tragically killed by the negligent driving of a taxi driver, in whose car she was a passenger. The first claimant, known as N, the then 18-year-old daughter of I, was also involved in the accident, and suffered significant physical and psychological injuries as a result. The second claimant was the victim’s husband – S.
The defendant admitted liability in full for both claims but only after a full inquest into I’s death where Brachers represented the family.
Before the accident, I had been N’s primary carer, due to her complex needs and disabilities from a rare congenital condition called CHARGE syndrome. She has serious sensory impairment including complete deafness and is only able to communicate through sign language. She also has hypotonia, learning difficulties and autism, lacks any real sense of danger, and needs constant supervision to avoid being a risk to herself or others.
Before the accident, N was cared for by I at weekends, when sick or on holidays. Otherwise, she was cared for by staff at the residential specialist school for the deaf in Brighton, which she was due to leave the following year. S said N would then have returned home to be looked after by I full-time. He said the family had moved to a large home eight months earlier because it was considered more suitable for N‘s long-term needs. The family had explored the idea of N living outside the home with full-time care support but had found nothing appropriate. I also provide full housekeeping services for the family, while S worked full-time as a bank manager.
Issues to the claim
The major issue in the case was how long I would have remained N‘s carer and at what point N’s care would have been taken over by others. The claimants said this would have been when I turned 80. The defendant argued that I would already have stopped her care of N by now.
Early on, the defendant’s insurers agreed to the appointment of a joint case manager who investigated the possibility of care facilities for N outside the home. She found that there were no suitable facilities. The insurers accepted the case manager’s recommendation to bring specialist carers for N and a housekeeper for the family into the family home, which the insurers agreed to pay for.
It was hoped that Kent County Council would contribute to the cost of the carers, however this was never secured. It soon became apparent that outside carers coming into the home environment N shared with her father and two brothers was not working for her or the family. On the case manager’s recommendation, the insurers agreed to set up for N an independent care regime in rented accommodation.
In December 2016, a suitable ground floor rental flat was found. The insurers agreed to pay for 24-hour care and accommodation costs using the same carers from a leading care agency specialising in care for the deaf. They also continued to fund the cost of S’s housekeeper in the family home.
At the insurer’s suggestion, S relinquished the role as N‘s deputy, and Brachers Trust Corporation was appointed her professional deputy. According to witnesses, N thrived following the move to her own home with her carers.
Dispute over care services claim
In October 2017, following the failure of initial settlement negotiations, the insurers withdrew funding for N’s care, accommodation, domestic and case management services. The insurers instead paid Brachers as her deputy, to cover care and accommodation costs for a short period of time, leaving the deputy to pay services after this.
The insurers argued N should move out of her current care regime to a local independent shared living facility alongside others with similar needs. They argued that even if I was alive this is what N would have wanted and it was in her best interests.
The case manager again investigated the alternative care arrangements available locally and advised there remained no suitable local shared living facilities that would meet N‘s care needs. Even if there had been, she found the cost would have been similar to N’s current regime.
S said the family would not have the means to fund the expected shortfall in local authority funding if suitable supported living provision did become available. This was disputed by the defendant’s experts who said N’s interests would be better served living in shared supported accommodation, rather than being reliant on her own care team without daily interaction with others.
The claimant’s experts and witnesses contended that her current care regime was the closest replacement possible for what her mother would have provided if she were alive. They said there was no cheaper suitable alternative and to break up a care regime that was working well would risk re-triggering N’s psychological trauma that followed her mother’s death and run contrary to her best interests.
How much was in dispute?
The value of the fatal accident claim was put at up to £8.36 million by the claimants and at £1.38 million by the defendant. They put N‘s own claim at £86,000 and the defendant at £43,000. The main item in dispute was the claim for replacing I’s care of N, which resulted in a difference of several million pounds. However, there were also six figure differences over the housekeeping and deputyship services, and modest differences over items including N’s claim for camouflage make-up for her post-accident scars.
After several settlement offers, the difference had narrowed but remained a seven-figure sum. As of early 2020 the last formal offers were £3.6 million and £4.95 million.
A two-week trial to assess the compensation was due to begin at the High Court on 2 June 2020 with a pre-trial review on 17 March. It was anticipated that 13 experts and 10 factual witnesses would give oral evidence for the claimant. In addition to S, factual witnesses included N’s case manager, lead carer, and deputy and former teachers.
On 13 March, the claimants and Brachers attended a joint settlement meeting and were able to reach a settlement of the claims for £4,255,770.64 (£3.5 million on top of interim damages and directly funded care). Brachers calculated this would be enough to cover the cost of replacing I’s care services until I would have been 70, plus reasonable sums for the other claims.
Given the various risks and arguments in the case Brachers considered this a fair and reasonable compromise, and the claimants’ QC was happy to recommend the court approved this settlement out of court for N’s benefit. The settlement was approved, and all damages paid within 14 days.
S said: “After a testing seven years (attending court last week did help draw a line under this) I wanted to express my heartfelt gratitude for (Jeremy’s) support during this time. I have really appreciated (his) professionalism and compassion. Thank you.”
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