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International Cerebral Palsy Claims - how to choose the right lawyer for you
Moving abroad after your child suffers catastrophic injury from medical negligence in England or Wales shouldn't prevent you from making a claim for compensation.
Serious injury claims should always be handled by solicitors with specialist expertise, but what difference does moving abroad make, and how do you know which lawyer is right for you?
International cerebral palsy claims have multiple additional layers of complexity which can be missed even by lawyers who are experienced in handling large claims in their own legal jurisdiction. Failure to recognise and understand the local and foreign implications of making an international brain injury claim can result in potential failure, long delays, increased costs and lower damages awards for the injured child.
We put some questions to Richard Money-Kyrle, a partner in Boyes Turner’s highly acclaimed medical negligence team, about the process and the pitfalls of international cerebral palsy claims.
Do I need a lawyer from my country of residence or from the country where the injury took place?
Where the injury was caused by medical negligence in England or Wales the claim will be governed by English law, regardless of where the injured child and their family now live. Under English law, medical negligence claims require complex issues of medicine to be assessed in accordance with tests laid down by the law of tort and key precedent cases which determine whether the case has been proven on liability and causation. As liability and causation must be proven for any claim to succeed, the starting point for bringing any claim which arose from negligence in England or Wales is to instruct a lawyer who is an English law specialist in cerebral palsy cases.
How is compensation calculated when someone who was injured in the UK moves abroad?
The compensation award will be determined in accordance with English legal principles. So, for example, the aim of compensation is not to punish the defendant but to put the injured person in the position they would have been, but for the accident, in so far as money can reasonably do so. English law also recognises that the injured person is entitled to “full compensation” rather than a set figure based on a tariff system as operates in some other countries.
Over time, claims for different types of personal injury damages in England and Wales have been calculated according to recognised methods which are accepted by the courts as the fairest and simplest way to assess and compensate the loss. Multipliers (the number of years by which any repeating annual cost is multiplied to produce a whole lifetime or entire working lifetime figure) are based on actuarial tables which take into account a range of contingencies to save the cost of having an actuary calculate the precise figure in each case. The multipliers are then discounted according to the Lord Chancellor’s fixed personal injury discount rate to reflect the rates of return that a properly advised investor can expect to achieve if they invest, say, damages representing a lifetime’s worth of net earnings. As they are receiving the entire sum now, the aim of the discount is to avoid overcompensating the injured person who receives their lifetime’s net earnings in advance and then also receives the interest from investing it. There are accepted ways of calculating the additional costs of accommodation, nursing care, depreciating equipment, such as adapted vehicles, which avoid lengthy and expensive arguments and additional expert evidence being needed in each and every case.
The problem arises in an international claim where, although the injured person has suffered the same types of losses and costs– eg care costs, equipment costs, adapted housing costs, special education costs – the courts do not have a tried and tested and generally accepted way of calculating those costs because the circumstances of each case and the extent and means of provision in each country is different.
There is no set way under English law of calculating and meeting the injured individual’s needs abroad. The lawyer must have sufficient understanding of their client’s injury and needs, the future implications of their client’s condition and the way that care and other provision is to be made and paid for in the foreign country to formulate an early strategy for assessing and calculating the cost of meeting the claimant’s needs. The aim of the lawyer’s strategy is to persuade the court that the compensation should be calculated in whatever way maximises their client’s compensation. Meanwhile, the defendant, who will ultimately be ordered to pay that compensation, will also be arguing for the cheapest way.
How do you assess the injured person’s needs if they live in another country?
At English law, an injured person must prove both that they have a need (or loss) arising from their injury and the cost of meeting those needs in order to be awarded compensation. In our experience, we achieve the best outcome for our clients and meet the high standard of assessment required by the English courts if we send experienced UK-based experts to visit our client in their new country of residence. This enables our experienced and trusted experts to assess our client in their new environment and make personalised recommendations for their future needs. Having proven our client’s needs, we then instruct local experts from the new country of residence to advise on the cost of meeting those needs locally, ensuring that they fully understand what is required of them by the English courts.
What difficulties arise during this process?
As lawyers, it is essential that we understand fully the local rules, regulations and practices which might increase the cost of meeting our client’s needs. We must also ensure that our experts are familiar with these differences from English law. Where local practise is less rigorous than our own, it is essential that we protect our client’s interests by including all their losses and additional potential costs of meeting their needs in their new country when we calculate the value of their claim.
We also liaise with local lawyers to make sure that we understand the differences in the provision of education, health care and social care from the UK, so that the injured person isn’t under-compensated owing to false assumptions about free local provision.
We work to understand and account for differences which might affect how the injured person receives, invests or is taxed on their compensation money, such as tax, trust law, inflation and investment rates, risks and returns. Local economies differ from country to country. Within the USA, for example, the laws and regulations can differ from state to state.
It sounds complicated. Is it really worth making a claim?
At Boyes Turner, we understand that the litigation process can appear daunting. We also recognise the enormous physical, emotional, psychological and financial impact of cerebral palsy and severe disability on our clients and have helped countless families rebuild their lives and ease their financial worries through their entitlement to compensation. Where compensation is available because the injury was caused by medical negligence, we believe it is in the severely injured child’s lifelong interests to assist them in making a claim.
Our aim is to guide you through the claims process in the quickest, most professionally supportive and appropriate way. We are experts at investigating and pursuing claims arising from injuries of the utmost severity. Wherever possible, we obtain early admissions of liability, judgments and substantial interim payments to meet our clients’ urgent needs for adapted accommodation, care, specialist equipment and therapies long before the claim is finally settled. We secure settlements which are tailor-made to our clients’ individual needs and circumstances, frequently combining the reassurance of guaranteed, lifelong, index-linked periodical payment orders (PPOs) for essential care costs with lump sum payments to provide for capital costs and give security against unexpected contingencies.
If you are caring for a child or young adult with cerebral palsy or birth-related disability and have moved abroad since the injury occured, contact us on firstname.lastname@example.org
I try to assist lawyers by explaining, in clear and comprehensible terms, what the relevant issues are and where the strengths and weaknesses of the case lie.
DR PETER DEAR