C v A County Council (Child brain injury case)

A recent serious personal injury case which settled after Independent Evaluation concerned a claimant who had been severely brain damaged at the age of 6 when he almost drowned in a local authority swimming pool. He was 22 at the date of evaluation and settlement.

The claimant visited the pool with his father and three siblings. The pool was a modern type of ‘fun’ pool, irregularly shaped and with variable depth. It was covered by CCTV and was supervised by lifeguards. The claimant could not swim but was not wearing arm bands or any other aid to flotation. At some stage, he left his family group and walked round the side of the pool. The CCTV which was later examined for the purpose of the trial, showed that he stopped walking and dropped down into the water in a controlled fashion. He was well within his depth. At that point an adult male walked between him and the camera and, when the adult had passed, the claimant was no longer to be seen above water. It is still not known what caused him to go down. The lifeguards did not react to his disappearance and the claimant remained submerged for 2 minutes and 40 seconds. He was then noticed and rescued by a member of the public who was teaching his son to swim. The claimant was deeply unconscious but was resuscitated. He had suffered serious brain injury.

Exactly what happened from a legal point of view following this tragedy was not clear to IE or the Evaluator. Much time had passed since the accident. However, a claim was eventually brought against the local authority on the basis that the lifeguards could and should have seen and rescued the claimant long before he was rescued and before he had suffered any lasting damage. Liability was denied. The claim did not come on until 2015; it was then listed for liability only and very little had been done by that time to assemble evidence to prove quantum should it become necessary.

The liability hearing took 4 days and in due course the judge found for the claimant on negligence and causation of permanent harm. The defendant local authority sought permission to appeal. This was refused by the trial judge and the single Lord Justice on paper but was granted on renewal. The appeal became live in March 2016. The parties were given a hearing date in June 2017.

At this stage, the parties began to consider Independent Evaluation but it seems that the claimant’s mother was not confident about the process. It was not until later that both sides agreed to go to Independent Evaluation. The aim then was to settle the appeal and the quantum issues. Plainly there was much preparatory work to be done. The Evaluator set a fairly demanding pace for the preparation and exchange of reports. But with determination on both sides, all was ready for the appeal and the quantum material was ready for the evaluation day in May 2017.

The Evaluator first considered the merits of the appeal. After hearing the defendant’s counsel, she took the view that, notwithstanding the grant of permission, the appeal had very little merit. The decision depended mainly on findings of fact which it would be very difficult to show had been perverse. She told the parties that in her view they should approach the appeal as giving rise to only a litigation risk; in short they should now deal with quantum, with the claimant being prepared to give a slightly higher than usual discount for the risks inherent in the assessment of quantum. The parties accepted that and acted on that basis.

Settlement of quantum was far from straightforward as there was a large gulf between the two sides at the outset. The Evaluator’s role at this stage was to point out (in a fairly forthright way) the strengths and weaknesses of the parties’ arguments. In this way, the disputes as to the various heads of damage were narrowed. There remained a major problem in relation to the discount rate. The claimant was seeking the new rate of minus 0.75. The defendant sought to resist that as unrealistic. The Evaluator expressed the view that judges would be unwilling to make a lump sum award on the basis of the new rate and that, if the parties wanted to settle for a lump sum, both sides would have to compromise on the discount rate. By mid-afternoon, they had done so and the case settled for an 8 figure sum. The settlement was approved three weeks later.

This case illustrates how quickly IE can get the evaluation of an appeal on, even when there is much preparatory work still to be done. The claimant and his family received their damages before the date of the liability appeal. Not only did the parties save time (probably two years) but the defendant will undoubtedly have saved costs. The case also illustrates that it is never too late to turn to Independent Evaluation.