Stephen Killalea QC secures 7.3 million euro settlement for Claimant brain damaged in motorcycle accident in Germany.
Stephen Killalea QC represented a Claimant who suffered brain damage and multiple orthopaedic injuries in a motorcycle accident in Germany. Primary liability was conceded by the German insurer defendant against whom the Claimant had a direct right of action under German Law.
The court approved the €7.3 million settlement in a case which raised a number of issues on quantum. German Law was the applicable law and was applied in determining the settlement figure. Although contributory negligence was an issue under German Law we maintained a stance of negotiating on a full liability basis.
The following points of interest arose in determining quantum:
(i) Although the defendants sought to maintain that the discount rate in Germany was 5% we considered that as this was not a mandatory figure an English court would probably apply a 2.5% discount rate.
(ii) Periodical Payments Orders were not available as the German insurer would probably not be deemed to be secure and there was a policy indemnity limit of €8 million which could have led to the indemnity becoming exhausted.
(iii) Although the German equivalent for General Damages (albeit under a different basis from English Law) was higher than the English award (€300,000) this encompassed certain items of past and future loss which would have warranted individual awards under English Law.
(iv) Despite the Claimant receiving 100% of his pre-accident salary as a Sales Director for a computer company (and continuing at reducing but still substantial rates to notional retirement) German Law does not require any credit to be given for such payments and the Claimant received his full loss of earnings claim.
(v) Despite case management being an unknown discipline in Germany we took the view that the English court would value future care and case management assessed at the full actual professional rates.
(vi) Future accommodation was valued in a manner familiar to practitioners of English Law save that it was increased as German Law does not follow a Roberts v Johnstone approach but allows the full recovery of the capital purchase price.
Stephen Killalea QC (leading Katherine Deal of 3 Hare Court) was instructed by Philip Banks and Lesley Edwards of Irwin Mitchell, Birmingham.
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