In our ongoing series on spinal cord injury compensation claims, Warren Collins weighs up some of the key issues surrounding matters of life and death when determining an award of damages.
‘So don't yield to the fortunes, you sometimes see as fate. It may have a new perspective on a different day. And if you don't give up, and don't give in you may just be okay.’
Lyrics from The Living Years, 1988, by Mike Rutherford (Genesis and Mike and the Mechanics).
While it is fairly certain that Mike Rutherford and BA Robertston (remember him?) were not thinking of the calculation of damages in catastrophic injury claims, their lyrics in The Living Years (as well as the title) seem to chime fairly well with lawyers who are exercised by the legal process. Read on to understand why.
Damages in all personal injury claims broadly fall into three categories: damages for the pain and suffering itself (the pure compensation element, which is woefully inadequate and disproportionately low on a per day basis for spinal cord injured claimants), damages for past financial losses (which are a matter of fact) and damages for the claimant’s future. It is the future loss element of damages that is always the most difficult to predict, and hence the most controversial too. As the English jurisprudential approach is to provide future damages for the rest of the claimant’s life, the only truly accurate way of determining the amount would be to wait until the claimant dies and then look back to see what happened. This rather inequitable and unworkable approach would not enable the claimant to fund the necessary therapies, treatments, care and accommodation that forms part of their claim. It would contradict all the norms of natural justice. Instead, a fair degree of crystal ball gazing based on analyses of the opinions of a range of experts on the most likely future for the claimant is required.
Future loss damages can be paid in three forms:
While each case turns on its own merits (and it is important to take independent financial advice on a case by case basis), there are a number of advantages of securing periodical payments in that:
However an order for periodical payments is not always possible and often not offered by defendants at joint settlement meetings: the arena in which many cases are capable of compromise. Moreover, future losses are very rarely based on periodical payments alone and that takes us back to looking at lump sum awards.
The calculation of the lump sum for a future loss has two bases: (i) the annual cost and (ii) the length of time the loss will be incurred. Naturally, a lifetime loss (or need) will necessitate that big question – how long will I live for? (or to put it another way, when will I die?).
While the starting point for life expectancy is to look at the published life tables, it is generally recognised that a spinal cord injury (and other serious neurological injuries) might have an adverse impact on life expectancy. Where future loss claims can run into six figures for each year of life (and noting that care needs in later years can increase significantly), life expectancy is often a very contentious aspect in spinal cord injury claims. The longer a claimant is predicted to live, the larger the claim. Each year of life can have a significant effect on the overall award of damages.
The courts are generally reluctant to give permission to parties to call separate experts on the issue of life expectancy and so it is generally a requirement for the medical experts to opine on life expectancy. The only thing that can be relatively certain is that the experts will be wrong. It is all but impossible to predict to the precise date in the future when someone will die. At best, opinions are based on statistical analysis, reported literature on the subject and clinical judgment.
Spinal injury clinicians tend to start with looking at normal life expectancy and then making various claimant specific adjustments. While there are various historical published papers on life expectancy for spinal cord injured patients, many experts will consider the Savic et al paper, Long-term survival after traumatic spinal cord injury: a 70-year British study, Spinal Cord, March 2017. This paper sets out some broad statistics for different levels of spinal cord injury for patients of varying ages.
Table 3a from the paper, detailing estimated life expectancy for male patients by age and neurological grouping, can be viewed here.
But even the authors of this paper recognise the limitations of their work and they accept ‘…Limitations of this study include a lack of information about possible other mortality risk factors, such as associated medical conditions, family history, lifestyle, as well as numerous psychosocial factors associated lately with mortality after SCI….’
For this reason, specialist spinal cord injury lawyers should be asking their expert to consider these additional factors, including smoking, alcohol and recreational drug history, as well as years since injury. Moreover, there is fairly powerful evidence that a compensation claim (and hence access to funds) is a positive indicator on life expectancy.
The greater the gap in opinions on life expectancies between the parties’ experts, the more compelling the case becomes for seeking periodical payments, but as previously observed, these cases are fact sensitive and each case turns on its own merits.
A reduction in a claimant’s life expectancy may give rise to a lost years claim in respect of earnings and pension entitlements that a claimant would have expected but for the injury.
Where a claimant’s life expectancy is impaired to the extent that they are unlikely to reach normal retirement age, then those expected earnings can be claimed as a loss. Likewise, pension entitlements for the period between current and ‘but for’ life expectancies can be claimed. These claims may be more complex where a claimant has been actively involved in a business which produces collateral benefit for a spouse or children but in the recent case of Head v Culver , the Court of Appeal confirmed that as a matter of principle such claims can be advanced.