• A dilemma for claimant Lawyer’s dealing with brain injury claims for children was highlighted and considered by the Court of Appeal in the case of SG –v- Hewitt (2012) EWCA Civ 1053.

    The Claimant was six years old when he was injured in a road traffic accident which resulted in him sustaining a severe brain injury to his frontal lobe. Medical evidence was obtained but the experts felt unable to predict what the impact of the brain injury would be until the claimant had matured.

    The defendant’s made a Part 36 offer of settlement in April 2009 but was accepted late in July 2011 because the claimant’s lawyers wanted to wait for the claimant to reach adolescence in order that a proper prognosis of the long term effects could be given. If a Part 36 offer is accepted late then the normal consequence is that not only are the defendant entitled to their costs from the date the offer should have been accepted to the date it eventually was, but the claimant cannot recover his costs for the same period.

    In over-turning the decision of the High Court, the Court of Appeal felt the decision to wait for the child to reach adolescence was a sufficient reason to depart from the normal costs consequences of late acceptance of a Part 36 offer. Part 36 offers can be an effective tool in bringing about a conclusion to the claim. A carefully thought out offer can put the other party under some pressure to settle.

    Recently there have been a significant number of Part 36 offers being made at a very early stage. However, this case highlights that where there is an uncertain prognosis in respect of a child especially who has sustained a brain injury it probably is not an effective tactic.

    In cases such as this there would need to be an approval from the Court and in the absence of a clear medical prognosis a Judge is unlikely to approve settlement. Therefore, it is important when acting on behalf of children with brain injury to ensure that the correct medical evidence is obtained and more often than not with a more significant injury you will have to play the waiting game for a clear and final prognosis to be made. The Court of Appeal decision endorses what is good practice when acting on behalf of a brain injured child.

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