Will my claim succeed?
Time limits for bringing a claim
Damages (money awarded)
Interim Payments (getting money early)
The Court of Protection
Periodical Payments
Will my claim succeed?
In many cases of cerebral palsy, the true cause of the condition is never determined. Certainly it is not possible in every case to prove that an injury at or around the time of birth is responsible.
In other types of birth injury cases, such as Erb’s Palsy it may be certain that the injury occurred at birth, but less certain that it has arisen as a result of negligence.
However, Withy King’s specialist team will be able to make an assessment from the medical records as to whether a birth injury may have been responsible for your condition, or that of your child, and whether a finding of negligence is likely.
Only a full investigation, including detailed expert medical reports, can decide ultimately whether your claim will succeed.
Time limits for bringing a claim
With any Clinical Negligence claim, there is a limitation period of 3 years. This generally means that court proceedings must be started within 3 years of the date on which the negligence occurred or within 3 years of the Claimant’s date of knowledge of certain crucial matters.
In the case of a child, however, the limitation period does not start to run until the child reaches the age of 18. In such a case court proceedings must be started before the child’s 21 st birthday.
In the case of a child who suffers from mental disability, time will not start to run unless that disability ceases. In many such cases, the limitation period will never start to run and there is no bar at all to bringing a claim at any point.
Where a claim may appear to be out of time, the Court has a discretion to consider allowing the claim to proceed regardless. We will be happy to consider this with you if it applies to your case.
In all cases, the best course of action is to seek legal advice at the earliest opportunity. Delay can result in the loss or destruction of medical records and in the fading recollection of important witnesses, which can prejudice a claim.
Damages (money awarded)
An award of damages (monetary compensation) in a birth injury claim is likely to include:
- General damages – these are damages for pain, suffering and loss of amenity and loss of enjoyment of life. In cases of very severe brain injury, such damages may range from approximately £115,000 to approximately £205,000.
- Special damages – these are specific losses including the following:
- the cost of care, both past and future
- the cost of aids and equipment
- the cost of therapies
- the cost of adapting accommodation or buying suitable accommodation
- loss of past and future earnings
- financial advice costs
This is not meant to be an exhaustive list of heads of damages, but is intended to show you how an award of compensation can be made up
The likely amount of damages
In the most severe cerebral palsy cases, the cost of future care means that damages may run into millions of pounds. Each case is different, however, and it is not possible to generalise about the likely level of awards of damages.
Interim Payments (getting money early)
It is not always possible to conclude birth injury cases swiftly. Medical reports may take time to obtain, and it may be necessary to wait to see how a child’s medical condition stabilises before the amount of compensation due can be accurately calculated.
In certain circumstances, however, a proportion of the likely compensation award can be obtained early. This is only possible if there is an “admission” by the Defendant – both that there has been negligence, and that the negligence has caused the Claimant’s injuries.
Any Interim Payment Award will only be a partial award. If your claim is worth, for example, £1 million, an interim award of up to £2-300,000 might be made. Usually the Interim Payment must be spent on specific items, such as accommodation, equipment, adaptations to an existing property or vehicle, or setting up a care regime.
The Court of Protection
Sometimes it is necessary to involve the Court of Protection in a claim, if compensation is to be awarded. The Court of Protection will need to be involved if a client is not capable of managing their own property and affairs as a result of mental disorder.
If a birth injury has affected the mental capacity of a Claimant, his or her affairs will need to be governed by the Court of Protection.
The Court will appoint a Receiver (or Receivers) to administer the Claimant’s assets and income. Sometimes a Professional Receiver is appointed; often one or more of the Claimant’s family can act as Receiver. In the case of a child, one or both parents will often be appointed. The Court of Protection is assisted by the Public Guardianship Office, which works closely with Receivers, offering support and guidance.
Periodical Payments
Once the amount of financial compensation to which a Claimant is entitled has been decided, a decision has to be made as to whether the whole award should be paid in one lump sum, or whether some of it should be paid in subsequent instalments, known as periodical payments. Such instalments are likely to be appropriate where there is need for a substantial provision for the cost of future care.
The Courts Act 2003 has given the court power to impose Periodical Payments in some cases.
Advantages of Periodical Payments
Periodical Payments are guaranteed for the Claimant’s lifetime, however long that may be, so this portion of the damages award can never run out.
There is certainty of payment – the amount paid each year is set at the beginning, and the payments are not affected by fluctuations in interest rates or stock market volatility.
Periodical Payments are entirely tax-free
Periodical Payments are guaranteed to increase in line with inflation for the Claimant’s lifetime, by being linked to the Retail Prices Index.
Need for a lump sum
Even if Periodical Payments are agreed, or imposed by the Court, there is still a necessity for the Claimant to receive a lump sum, in order to create sufficient flexibility to deal with any unforeseen change in circumstances.
Claims against the NHS
The NHS Litigation Authority is often keen to agree to an order for Periodical Payments, subject to the figures adding up from its own perspective. Most birth injury and cerebral palsy claims are pursued against the NHS, so it is quite common for Periodical Payments to be ordered in such cases. Periodical Payments are more likely to be considered in such cases when the value is high, and there is likely to be a need for future care.
