Care and case management
- Some family members try to claim the same care rate as a professional care worker, providing the defendant with the difficult argument that a parent (and in particular, a mother) is not doing any more than they would otherwise do.
- We provided an example of a Claimant with Alzheimer’s being cared for by her highly paid IT consultant daughter. The daughter argued that her skills in communications and her professionalism placed her in a similar position to a case manager - the difference in value for past care was £125,000 v £12,000.
- Whilst the sums sought may not be valid or recoverable, there is often an over compromise and the risk of increased costs through advancing a counter-argument.
- We discussed the possibility of a court approved panel of experts (as with asbestos cases) and the concept of agreeing a “middle” expert. It was acknowledged that there is a very small pool of experts who would be widely regarded as invariably objective. Even with “objective” experts, differences in approach and valuation occur and compromise will normally be required. Whilst the courts are likely to be receptive to the idea of parties agreeing to a panel of approved experts, given that claimants and insurers generally prefer to choose their own expert, the correct question probably should be - how do we improve the pool of experts?
Alternatives to Roberts v Johnstone
- We provided an example of a 40 year old paraplegic Claimant who sought £7m for a house on the Bishops Road. Comparable properties in Mill Hill (where the Claimant lived) were £1m. This approach can have an adverse effect on settlement, particularly where large interim payments are granted for a new home.
- We provided a further example of a teenage amputee who proposed to pool his award with the proceeds from the sale of his parents’ property and to live together until age 18. Thereafter, the Claimant sought to sell the adapted house, move to a new adapted property and for his parents to take their share and re-purchase. The Defendant, therefore, faced two sets of purchase/adaptation costs.
- We discussed that generally, the insurer has little or no appetite for a proposal of providing rent-free accommodation, rented accommodation from PPO funding or other permeations of ownership. Claimants do not appear to understand that the insurer is an insurer; not a property developer.
- Even where the possibility of providing rented accommodation is considered, there are other issues to consider e.g. responsibility for maintenance. Such arrangements also carry the risk of bad press if family members are eventually required to move out of the adapted house and face being back at the bottom of the property market. These are difficult arguments to over come.
Enhanced retirement ages
- We discussed the current position that the Ogden Committee has been asked to provide more examples for 65 years +, in light of the increase in pension ages.
- We agreed that we can point to statistics to show that despite a state pension of 65, the average retirement age is less than 65. The initial challenge to the claimant’s solicitor, we suggest, should therefore be “why is your client different?”
Hydrotherapy, assistive technology and other treatments
- We provided numerous examples of the creative therapies being sought by the claimant, including horse riding, swimming with dolphins, sensory toys, and music. We also referred to a successful claim for art therapy from a Claimant who was one step up from PVS (and whose art has since been exhibited) and for garden therapy from a wheelchair user without capacity.
- We agreed that the future is encouraging for mobility. We discussed a new machine (valued at approximately £100k), which may allow a paraplegic to walk and sit. We suggested that such advancements may in future lead to a defence counter-argument that if assistive technology such as this increases the independence of the claimant, there should be a decrease in care costs. However, we agreed that this does not yet appear to be the case.
Closing remarks
In light of the forthcoming changes following the Jackson review (and in particular the abolition of recoverability of CFA success fees and ATE insurance premiums), claimants may try to boost their damages awards to off set any disadvantageous reform of their funding arrangements. We therefore questioned whether this may raise a further barrier to working consensually.