H v B (Traumatic brain injury due to road traffic accident)

The Claimant sustained a traumatic brain injury in a road traffic accident. Liability had been compromised, but quantum was complicated by the fact that the Claimant had pre-existing neuro-developmental problems, with autistic traits. Following the index accident she retained a high IQ but had problems with memory, concentration and executive functioning.

The parties and their experts could not agree as to the additional insult suffered and its consequences. This reflected in the difference between a schedule totalling £6m and counter schedule of £150k.

Parties had been unable to resolve the case at a joint settlement meeting and the case was proceeding to trial, when they agreed to one final attempt to resolve the case with an independent evaluation.

The Evaluator was required to read a vast quantity of medical reports and papers prior to the evaluation. During the course of the day he was not only able to test strength of the expert evidence with the parties representatives, but met and better understood as a result the Claimant’s difficulties and needs. The Evaluator was able to provide the parties with probable pre-accident and post accident trajectories, and how those were likely to affect employment prospects and care needs. Based upon that, a detailed and reasoned valuation of what the Evaluator would have awarded if sitting as a High Court judge was provided to the parties. It subsequently transpired the evaluation was similar to the Claimant’ ‘bottom-line’ settlement figure expressed at the JSM. With the benefit of the evaluation the Defendant’s insurers were willing to alter their views on the case significantly and agreed a compromise based on the evaluation.

This case demonstrates the importance of an independent Evaluator concentrating the parties’ minds upon what a judge is likely to award on the evidence available.