The recent case of Benjamin Gillick (A Minor) –v- Temple St University Hospital has set a new record for personal injuries, having settled for total damages in excess of €32m.
Upon approving that settlement, Mr Justice Kevin Cross was eager to stress that the vast bulk of the figure was not “compensation”. The majority of the damages is to provide for the cost of the Plaintiff’s complex care, accommodation and educational needs for the rest of his life. This is an important fact can often be lost in the commentary on such settlements.
Here are the most common areas of damage which make up the bulk of such significant awards:
General and special damages
Any individual with a personal injuries claim is entitled to both “general” and “special” damages.
General damages are compensatory damages for the individual’s pain and suffering, whereas special damages are a broad category comprising any financial loss or expense that arises as a result of the injury or accident.
In a minor case involving soft tissue injury or a broken arm/leg which fully heals, the special damages will include any medical treatment or physiotherapy that has been required, or will be required, in order to effect a recovery from the injury. They might also include some loss of earnings if the individual was off work for a time. The special damages are limited because the injury is limited -- the Plaintiff will recover in a relatively short space of time.
In a catastrophic case, the individual will never recover, and will continue to incur medical and other expenses or losses for the remainder of their life.
Other significant costs would include any future or ongoing treatment, such as: occupational therapy or physiotherapy, including any specialist equipment required.
Certain costs will have to be reassessed over the Plaintiff’s lifetime i.e if the Plaintiff requires a certain method of transport that will have to be renewed every few years or requires certain technology that will have to be upgraded when newer versions are created.
Furthermore, the Plaintiff’s living conditions may have to be completely altered to accommodate their life post-injury i.e special furniture, living quarters for a live-in carer. Additionally, in the case of injuries acquired during the Plaintiff’s childhood, they may want to live away for their parents when they reach adulthood and would therefore require a property of their own.
Loss of work
Individuals who have experienced minor-injuries may receive compensation for loss of earnings while being out of work. The same is true for individuals who have been catastrophically-injured, but are less likely to return to work and will require compensation for the rest of their lives.
Some effort has been made in recent years to introduce a system whereby an annual payment would be made for life to a catastrophically injured Plaintiff rather than a single very large capitalised lump sum. This payment is called a Periodic Payment Order.
In theory, this would eliminate the possibility of a Plaintiff running out of money later in life, but the system as currently enacted does not adequately deal with the inflation that will occur over the Plaintiff’s lifetime and as such, has been rejected by the vast majority of Plaintiffs. For more information, read our other article here.
When all of these factors are taken into consideration, the settlement in the Gillick case is more understandable. It must also be emphasised that the settlement in Gillick is very much computed on the facts of that specific case and should not be thought to represent a new benchmark against which future catastrophic cases will inevitably be measured. Every catastrophic injuries case is carefully and painstakingly investigated, by both the Plaintiff and Defendant, to ensure that each Plaintiff’s unique future needs are individually costed.
Article by: Neil Kidd, Partner
10 May 2019