Adopting unique PPO approach secures £4.4 settlement for Claimant with agreed life expectation of 11 years
Stephen Killalea QC represented a severely brain damaged Claimant aged 57 years in a court approved settlement which adopted an unusual but beneficial approach in the terms of the Order approved in circumstances in which, for the past decade, the Claimant has resided in care homes with statutory funding and has yet to live in his own home and utilise his own care team. The terms of the Order are such that, to the Claimant’s benefit, he is guaranteed the whole of his private care costs in his own home for the rest of his life without any discount being made for the risk that the trial may fail.
The Claimant was injured in a road traffic accident over 10 years ago. Judgment was entered 4½ years ago. Throughout this whole period and to date, the Claimant has been resident in various care homes, apart from a period in a neuro-rehabilitation unit, with his care being statutorily funded. Life expectation was agreed at a further 11.2 years.
The previous solicitors had failed to progress the case but in early 2013 new solicitors were instructed and matters progressed rapidly. The Defence case was that the Claimant was unable to express consistent preferences on where he wished to live and that there were substantial reasons why moving out of the care home might be contrary to his best interests. Unsurprisingly the Defendants also relied upon the joint statement of the neuropsychologists who agreed that a trial of living in a home on his own would be the appropriate next step.
Although a suitable property had been identified at the date of settlement, contracts had yet to be exchanged. Despite there being disputes on what night care would be required in his own home (in particular whether any waking care would be needed), the PPO provided for the sum of £255,000 (which covered waking care) in respect of future care to be payable from the moment the Claimant moved into his own home and for that sum to continue for life irrespective of whether the trial failed or whether, for any reason, the Claimant should return to institutional care. It was also agreed as a term of the Order, that the sum of £125,000 in respect of care would be payable until the Claimant moved into his own home, in order to “top-up” by private care; the “base” care costs currently being met at the care home by statutory funding (currently running at approximately £60,000 p.a.). A “passive” undertaking was given by the Claimant (through his Litigation Friend and Deputy) to use reasonable endeavours to maintain (but not to obtain) any statutory funding received which would then be offset, in the following year of the PPO, against the agreed PPO of £255,000. No offset of statutory funding applies during the first stage of the PPO (£125,000).
The global settlement was a PPO of £265,000 p.a. (to include a further £10,000 p.a. in respect of part of the Deputy’s costs) and a capital sum of £2 million (gross of CRU and interims already received). On a capitalised basis the settlement was equivalent to over £4.4 million.
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Stephen Killalea QC represented the claimant.
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