Chris Bright KC and Stephanie Code of Penningtons Manches Cooper (as assisted by Aline Constan) have achieved a clinical negligence birth injury claim settlement, as approved at the RCJ on 8 May 2024, in excess of £30m.

The Claimant LLL, acting by his mother and litigation friend MMM, is in his late teens. The Defendant, East Kent Hospitals University NHSFT, admitted liability for the Claimant’s damaging hypoxia and resulting brain damage suffered at his birth and that Claimant’s learning disability, attention deficit hyperactivity disorder, autism, sensorineural hearing loss and motor difficulties were caused by the acquired brain injury.

A claim form was issued on 4 October 2017. Judgment was entered for damages to be assessed on 23 January 2018. The Claimant’s Schedule of Loss was dated 19 July 2023 and was informed by experts in 11 disciplines, namely Paediatric Neurology, Neuro-Otology, Audiology, Educational Psychology, Neuropsychology, Care, OT, Physiotherapy, AT, Accommodation and Deputyship. The Defendant’s Counter Schedule of Loss was dated 16 February 2024 and relied upon experts in 10 disciplines.

It was agreed that the Claimant’s statistical life expectancy is only 5% reduced at to age 83 years and that, as a result of his cognitive and behavioural difficulties rather than physical or medical problems, the Claimant requires skilled care assistance with a 24-hour regime. Particular issues arose around the unpredictable nature of the Claimant’s challenging behaviour and therefore a workable care regime, whether and to what extent advanced hearing aids and audiological management should be funded on a private basis, and accommodation needs.

The 7-day assessment of damages hearing at the RCJ was fixed for 13 May 2024. However, an RTSM took place on 9 April 2024 involving Leading Counsel (John Whitting KC for the Defendant) and highly experienced clinical negligence solicitors for both the Claimant and the Defendant. A settlement was reached at a retained lump sum of £7.5m, a first year PPO for care and case management of £230,000 and thereafter a PPO for life of £325,000. This was regarded as being more than reasonable, not only due to the level of the lump sum and PPO (with a life expectancy of 83 years, a total of over £30m if capitalised), but also due to the Trust agreeing to only one staged PPO, which will provide a very significant year-on-year contingency for the Claimant’s realistic care and case management needs up to the summer of 2029. It was therefore the considered and very clear view of the Claimant’s advisers that the proposed settlement represented a good and even excellent outcome in securing his future.

On approval at the RCJ on 8 May 2024 the Learned Judge agreed. She commended the Claimant’s parents and recognised how tough and distressing things had been for them and LLL over the years. Chris Bright KC paid tribute to the Claimant’s parents for their selfless and invaluable support of him since his birth, particularly because of MMM having sacrificed her career to care for him and the relentless and exhausting nature of the behavioural challenges that the Claimant, through no fault of his own, continues to present.