Andrew Ritchie QC and Simon Brindle secure substantial settlement for tetrapelgic victim

News | Tue 17th Mar, 2015

DAVID HERBERT LINKSON

(A Protected Party, by his Litigation Friend, KARYN MARIE LINKSON)

                                                       Claimant

 – and –

 

ARRIVA LONDON NORTH LTD

Defendants

                                                                                        

 

CASE REPORT

                                                                                        

 

On 11th February 2015, Her Honour Judge Coe QC, sitting as a High Court Judge, approved compromise of Mr Linkson’s claim against Arriva London bus company arising out him being struck by one of the Defendant’s buses during the early hours of 26th April 2009.  Mr Linkson sustained catastrophic injuries, primarily in the form of a traumatic brain injury.  He was rendered tetrapelgic and left with a devastating cognitive deficit.  He now requires 24-hour care.

The Court approved an award of lump sum damages in the sum of £2,000,000, and a periodical payment award in respect of care of £135,413 per annum.  As discussed below, the damages were reduced by reason of Mr Linkson’s agreed contributory negligence.  Further, Mr Linkson’s life expectancy was in issue, with the Defendant contending for a multiplier of 24 to be applied in the case.  Accordingly, on a full liability, lump sum basis, the award approved was over £9,130,000 at least.

The case raised three issues, a discussion of which practitioners may find interesting, namely:

a.    How the provision of state care is to be accounted for when a ‘Peters promise’ cannot be given;

b.    Challenging Professor Strauss’ expectation of life for TBI Claimants; and

c.    Establishing security for Periodical Payment Orders.

 

Liability

Liability was difficult.  Mr Linkson was struck by the bus as he was crossing the road.  He had walked to the centre of the road as the bus approached and then run directly across the approaching buses’ path when it was very close to him.  The Defendant defended the claim completely up until the week before a liability only trial.  At that stage it accepted Mr Linkson’s Part 36 Offer to consent to a reduction of 42.5% for his contributory negligence.  That compromise was approved by the Court in October 2012.

Quantum

Practitioners familiar with TBI cases will be aware that almost no aspect of these cases can be described as straight-forward.  Rather than recite all the issues in the case, I will focus on the three I consider practitioners will find most interesting.

The impact of state funded care when a ‘Peters’ promise’ cannot be given

Practitioners will be familiar with the long running saga as to how state funded care is to be accounted for in personal injury cases.  In short summary, Defendants have been arguing, with no small measure of success, that Claimants should give credit for the state funded care local authorities were duty bound to provide them.  The situation had become most unsatisfactory, with Courts attempting to assess damages while having regard to local authority care regimes that may or may not continue in the future.  In Peters v East Midlands Strategic Health Authority & Ors [2010] QB 48, the Court of Appeal approved a method by which the uncertainty could be avoided.  In the case, the Claimant’s litigation friend essentially agreed to undertake not to seek state funding for the care the Claimant needed.  In other words, the Claimant elected to become self-funding.  The Court of Appeal accepted that she could do so and the Defendant could not insist that she relied on state care.

The difficulty in Mr Linkson’s case was that he could not elect to be self-funding.  The deduction for contributory negligence meant that, whatever he received as damages, would be insufficient for his need.  Also a result, he would also need state funded care and assistance.

How then, was this issue resolved?  As practitioners will be aware, when assessing damages contributory negligence is to be ignored (Sowden v Lodge [2005] 1 WLR 2129).  Thus, and at risk of gross oversimplification, it was possible that, at trial the judge might assess Mr Linkson’s care need, then deduct the amount of state funding he was receiving, and then make the deduction for contributory negligence.  This could have had the effect of leaving Mr Linkson significantly undercompensated.  A similar approach was urged upon the trial judge in Morgan v Phillips (unreported, High Court, 14th March 2006).  It was unsuccessful because the Defendant failed to establish what, if any, state funding would be made available throughout the Claimant’s life.  In Mr Linkson’s case, the state was already funding some of his care.

There are, of course, arguments to the contrary and, fortunately, both parties approached the issue more pragmatically.  It was agreed between them to treat any damages for ‘private care’ as ‘filling’ the gap between the state funded care Mr Linkson received and his actual need.  So, by way of example, Mr Linkson’s actual care need was agreed at £235,500 per annum gross of any deduction for contributory negligence.  Of course, his state funded care was significantly less than this.  The liability split meant he only recovered damages of £135,413 per annum.  It was agreed between the parties that that amount would go towards filling the ‘gap’ between the state funding Mr Linkson was receiving and his actual need.

There was, of course, a caveat.  During negotiations, the Defendant had insisted on the Claimant giving a reverse indemnity.  They had sought agreement that, in the event the state funding exceeded the difference between Mr Linkson’s actual need and the damages he received, Mr Linkson repay to them any surplus.  In other words, if Mr Linkson received care valued at more than £100,087 per annum from the state, he would be obliged to pay the difference to the Defendant.  By this method, the Defendant sought to avoid double-recovery.

Ultimately, though, in order to achieve settlement, the Defendant offered Mr Linkson a slightly lower lump sum, in return for not requiring the reverse indemnity.  The intent clearly being to put the risk of a shortfall on the Claimant.  At the time of settlement, the state funding the Claimant was receiving was slightly more than the £100,087.  But, Mr Linkson was due to move into his own accommodation following the resolution of his case (he had lived with his parents ever since his discharge).  It is felt by those advising him that this would only increase the value of the state funding he received, ultimately resulting in a net gain.

Clearly, the individual facts of Mr Linkson’s case make this a satisfactory compromise.  However, in other cases in which liability is an issue practitioners may be assisted by treating any state funded care as ‘top up’ care, and considering the appropriateness of the reverse indemnity.

Life Expectancy

Practitioners in this field will be familiar with Professor Strauss and his work.  Rather late in proceedings, the Defendant sought and obtained permission to rely upon his evidence as to Mr Linkson’s expectation of life.

The Claimant countered by deploying evidence from Professor Jane Hutton, of the Department of Statistics at University of Warwick.

At the time of his injury, Mr Linkson was almost 28 years old; at the time of compromise he was 33.  As to be expected, Prof. Strauss opined that there was a significant reduction in his life expectancy, which he felt was to age 64.  Prof. Hutton, on the offer hand, opined that his life expectancy was to between 72 to 74.  The Neurologists in the case had previously expressed conclusions similar to Prof. Hutton.

The main differences between the life expectancy experts were three-fold, namely interpretation of the relevant data, which cohort was most appropriate to compare Mr Linkson to, and the cohort Prof. Strauss had used.  It is this latter issue that is likely to interest practitioners the most.

Put simply, and again at risk of gross oversimplification, it appears that the primary cohort Prof. Strauss uses is based on persons who are on what is known as the California Mental Retardation Database – a database curated by the California Department of Developmental Services (‘CDDS’).  In order to fall within the auspices of the CDDS, ‘a person must have a disability that begins before the person’s 18th birthday, be expected to continue indefinitely and present a substantial disability as defined in Section 4512 of the California Welfare and Institutions Code.’  In other words, it would seem to be the case that Prof. Strauss’s primary cohort is based on a group who, by definition, either both suffered substantial disability before aged 18 and then suffered a traumatic brain injury, or, at the very least, suffered a traumatic brain injury that caused substantial disability before they were 18.  Practitioners may wonder, if this analysis of the ‘Strauss’ cohort is correct, how appropriate its use is when assessing the life expectancy of, say, a 40 year-old with a traumatic brain injury.

The Claimant, through Prof. Hutton, took issue with Prof. Strauss over his cohort in their joint discussion.  She asked him to justify it and provide the data upon which he based his conclusions.  Prof. Strauss proved reluctant to, and did not in fact, provide his data (some of which was unpublished) to Prof. Hutton.  As a result, she could not analyse it herself.  An article found here tends to suggest that this is not uncommon on the other side of the Atlantic either.

So, the issue was not resolved at the joint statement stage.  However, when negotiating compromise of the claim, the Defendant took a more realistic approach to life expectancy.  Whether this was a tacit admission that Prof. Strauss’ conclusions would not stand up to close scrutiny or not will never be known.  However, Claimants faced with a report from Prof. Strauss in the future may want to put pressure on Defendants to make him provide his data so it can be analysed and the cogency of his conclusions tested.  I could also recommend Prof. Hutton as an expert.

Security of Periodical Payments

The final issue of interest was security of periodical payment orders.

Given the issue of the Claimant’s life expectancy, obtaining periodical payments in respect of his future care needs was of fundamental importance.  However, section 2(3) of the Damages Act 1996 (as amended) provides that ‘a court may not make an order for periodical payments unless satisfied that the continuity of payment under the order is reasonably secure.’  Section 2(4) of the Act goes on to list three circumstances in which the payments are ‘deemed’ to be secure.

In Mr Linkson’s case the Defendant’s insurer was based in Gibraltar, and, we were told, in liquidation.  Consequently, his advisors had some understandable concerns about whether the insurer would be able to continue to make any payments ordered.  Moreover, because the insurer was not UK based, it was not readily apparent that the Financial Services Compensation Scheme would apply in the event of default (if the scheme did apply, the payments would be deemed reasonably secure by virtue of section 2(4) of the Act).

Rather unhelpfully, the Defendant took the view it was for the Claimant to prove that continuity of payment was reasonably secure and, whilst ready and willing to provide relevant information, did not participate in clarifying this issue.

Fortunately, the Claimant instructed Mr Richard Cropper, Independent Financial Advisor, to provide expert opinion on the issue.  He analysed the law and applicability of the FSCS scheme, and even obtained a comfort letter from the FSCS setting out its understanding of it too.  Of course, the FSCS would not prospectively state it would accept any claim made in the event of default by the insurer, but indicated it probably would.

In giving a short judgment on this issue at the approval hearing, the learned Judge expressly stated that the Claimant had gone as far as he could and that Mr Cropper’s evidence was more than sufficient to satisfy her that the continuity of payment was reasonably secure.  She praised Mr Cropper as being a very capable expert in the field.

As an aside, I understand that Mr Cropper was praised again, recently, by Mr Page QC, sitting in judgment in the Jersey case of X v The Estate of Y (unreported, 23rd October 2014).  In this judgment, the judge expressed the view that Mr Cropper ‘has become a leading expert in the field of periodical payment orders.’

 

Simon Brindle

17th March 2015

 

Simon Brindle was lead in the case by Andrew Ritchie QC.

Both were instructed by Anthony Mitty of Peter Richbell & Co Solicitors.

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