The Government has announced a change to the “discount rate” for clinical negligence claimants
Better news than expected for clinical negligence claimants following the government’s review of the discount rate to -0.25%, but continued frustration over accommodation claims.
The government has announced a change to the “discount rate” (the expected rate of return on investments) which is applied to claims for future losses. Having been changed from a longstanding positive figure of 2.5% to a negative -0.75% in February 2017, a change back to a positive figure had been widely expected across the profession.
Whilst the change will mean a modest reduction in the value of claims for future losses such as care, loss of earnings, accommodation adaptation costs, future treatment costs etc, maintaining a negative rate means that these claims will not be impacted as much as a return to a positive rate would have required.
The down-side for some claimants is that claims for the cost of purchase of specially adapted accommodation (often necessary, particularly in the highest value claims) will continue to be difficult as these claims are calculated in accordance with the 1989 Court of Appeal decision in Roberts v Johnstone, which takes account of the discount rate, and for as long as this remains negative, the Roberts v Johnstone calculation inevitably leads to a nil award.
This cannot be right, but to date, the courts are following precedent and making no award for accommodation purchase costs at trial. In some cases, the discount rate of -0.75% meant that there was sufficient provision elsewhere which could be utilised for purchase costs, but this was certainly not the case in all claims. A number of alternative methods of calculating purchase costs have been submitted in cases and usually, where a settlement has been negotiated, a significant allowance has been made by Defendants.
Trial judges, however, have considered themselves to be bound by the Roberts v Johnstone calculation, but those dealing with such claims are now waiting for the Court of Appeal to review the position and clarify how such claims are to be dealt with in the future – their hearing of the appeal in the case of Swift v Carpenter is expected this month.
Those in need of specialist accommodation, and their advisors, hope that the Court of Appeal will conclude that it can only be right that a claimant who needs rehousing due to negligence can recover the cost of purchasing appropriate accommodation as part of their claim.
Moore Blatch advise a number of clients who need specialist accommodation due to the extent of their injuries.
£23m compensation awarded to 12-year-old
A 12-year-old girl, who was left with brain injuries – after her delivery was negligently managed at Royal Berkshire Hospital, Reading, in 2005 – has been awarded one of the largest ever clinical negligence settlements.
£1.3m interim award for brain injured child
An 11 year old girl who suffered a catastrophic brain injury as a result of negligence during her delivery has successfully obtained court approval of interim payments totalling in excess of £1.3m.
£130,000 settlement for a client who suffered injury as a result of delayed management of cauda equina syndrome
Moore Blatch have obtained a settlement of £130,000 for a client who suffered injury as a result of delayed management of cauda equina syndrome.
£1m compensation recovered following delay in treating cauda equina syndrome
Mrs J will receive £1m compensation after an ambulance crew failed to take her to hospital for assessment after she developed symptoms of cauda equina syndrome. The delay in treatment led to Mrs J developing serious physical disabilities and being unable to continue her career.
£140,000 compensation following inappropriately managed fracture
Moore Blatch have obtained £140,000 compensation for a client whose fracture was inappropriately managed at Southampton General Hospital, causing him to undergo an unnecessary hip replacement at the age of 27.
£360,000 compensation due to GP’s negligent failure
Moore Blatch have obtained compensation of £360,000 for a family who lost their husband and father of four children due to his negligent failure to refer him on for investigation after he passed blood in his urine. Mr X subsequently died as a result of metastatic renal cancer.
£300,000 compensation following negligent treatment to bilateral leg fractures
Moore Blatch have obtained over £300,000 compensation for a client who suffered from negligent treatment after a fall from a ladder resulted in her breaking both legs.
The patient, who was 41 at the time of her injury, needed extensive orthopaedic management but also acquired an MRSA infection in her left knee whilst in hospital which led to further complications and delay in providing appropriate treatment. As a result of the negligent treatment, the patient was left seriously disabled, in constant pain and needing to use crutches to mobilise. She is likely to need further knee surgery in the future and as a result of the hospital acquired infection, there is a higher risk of further infection than would otherwise have been the case.
The patient’s case was that, with appropriate treatment, she would have made a good recovery from her original injuries over the course of 6 months with only minor, residual problems thereafter.
Moore Blatch obtained an early liability judgment against the hospital together with an interim payment of compensation for the patient to assist with her needs. Following a later exchange of additional expert evidence on the impact of her injuries, negotiation led to a definitive award of over £300,000 for the patient.
Paul Kingsley acted on behalf of the Claimant.