ABB (a Protected Party by her Litigation Friend, BCC) v. BETSI CADWALADR UNIVERSITY HEALTH BOARD
Satinder Hunjan QC has successfully concluded a very high value and highly complex claim arising out of the Claimant’s mother suffering a uterine rupture during the mother’s labour resulting in the Claimant suffering from catastrophic injuries; the Claimant sadly suffers from severe ataxic and dyskinetic cerebral palsy. She has significant impairment of mobility, will not be able to live independently and will require full-time care for the remainder of her life.
The uterine rupture can be very difficult to foresee; in this case the mother was undergoing a trial of labour following a VBAC (Vaginal Birth after Caesarean section).
A Claimant’s case was that the labour was not properly managed and that the increased risks of uterine scar rupture following a previous Caesarean section and the increased risks resulting from the use of Syntocinon were not recognised by those caring for the mother at the hospital for whom the Defendant was responsible.
It was the Claimant’s case that regrettably following the failings of the Defendant there was a uterine rupture which resulted in a crash Caesarean section being undertaken and although the Claimant was saved she was severely damaged such that she faces a lifelong disability.
After a long legal battle in this case, liability was finally compromised to the extent of 85% in the Claimant’s favour and the claim has now been fully compromised and approved at the High Court.
The claim was compromised in the usual way upon the Claimant receiving a substantial lump sum together with annual staged periodical payments for life; the value on a 100% basis of the claim on a lump sum basis was around £20m.
The sums which had been received and will be received during the Claimant’s life will ensure that insofar as money ever can to put the Claimant back in the position in which she would have been but for the injuries which have been caused to her; the compensation which has been achieved should ensure that the Claimant will have security for life and provision will be made for her care – in particular, despite the severity of the injuries which the Claimant has undertaken, she will remain capable of undertaking a wide variety of activities which can be now fully supported including her love of horses and horse-riding.
It was a sad feature of this case that the mother, who was a native of this country, had returned back to have the Claimant as she had hoped that the standard of care which she received would have been of a good quality.
This was a very high value case and in such cases it is inevitable that a periodical payments order will be made. However, the importance of periodical payments should be noted also in lower value claims – both clinical negligence and personal injury. Part of the reasoning for introduction periodical payments into the provision which a Court could make was research which had demonstrated that Claimants who were provided with lump sums were in fact running out of their damages before the end of the period for which they were supposed to sustain the Claimant. This reasoning remains a strong basis for seeking a periodical payments order. However, the current emergency climate also emphasises another very important feature of a periodical payments order. Periodical payments are tax-free; presently, it is clear that there will inevitably be rises in taxation in the coming years, if not sooner. In addition, it is clear that the potential for investment returns is highly uncertain. Provision by way of periodical payments protects a claimant from running out of their damages, provides protection against tax fluctuations and removes the uncertainty associated with investment risk.
Satinder was instructed by Yvonne Agnew, Head of Clinical Negligence (Cardiff) of Slater & Gordon, Lawyers.