Novel agreement to compensate for risk of marital breakdown in severe brain injury case
Rob Weir QC recently acted for a claimant who sustained a brain injury in a road traffic accident. He continued to live at home with his wife, enjoying the benefit of a combination of paid support and gratuitous care from his wife, not least overnight. There was an acknowledged risk of marital breakdown (as well as of his wife predeceasing him). In such event, it was common ground that his care needs would substantially increase. A variation of a PPO and/or a provisional damages award can be made for the risk of a deterioration in the claimant’s medical condition but not for an event such as marital breakdown.
Esure insurers were, however, prepared to enter into an agreement under which the claimant had the right to return to court in the event that his wife did leave him or predecease him. The parties then compromised future care by way of a PPO on the basis of the cost of meeting the claimant’s needs on the assumption that his wife would continue to help him.
As the court had no power to make this order, it was made by way of a Tomlin Order, following the approach of Swift J in AA v CC [2013] EWHC 3679 (QB). An order in these terms, including payment of a lump sum and PPO with provisional damages for the risk of epilepsy, was then approved by the Court.
Rob Weir QC was instructed by Nikki Golding of Irwin Mitchell solicitors.
Rob has settled claims in the last 6 months for catastrophically injured claimants with a total value of over £70 million.
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