Brain Injury at Birth Awarded £10 million Compensation

Brain Injury Claim Awarded £10 million Compensation

A girl who sustained serious brain injuries during her delivery has been awarded over £10 million damages by the High Court.

Seven-year-old Eva Totham suffered a grade 2 hypoxic ischaemic injury and her ongoing injuries are severe.

In a judgment delivered on 22 January, Mrs Justice Laing went through the various claims and included within the award such matters as future care and case management, aids and equipment and accommodation.

However, one of the limitations of the award was that it only covered the period for the current life expectancy of the claimant which was for a further 40 years, in other words to aged 47. It did not therefore cover the so-called ‘lost years’ for the claimant.

In this brain injury claim, these were put as between the ages of 47 and 93.6. The reason for this was down to a Court of Appeal case called Croke v Wiseman[1982] 1 WLR 71.

The problem with this is that it doesn’t seem to fit with the general principle of compensation with respect to personal injury. This is that in terms of compensation the law seeks to put the claimant back into the position that he or she would have been had the accident not occurred.

In other words, in this particular case the claimant might then have been compensated for the period beyond the age of 47 to the age that she might have been expected to live had the accident not occurred.

This difficulty was something the judge herself recognised in her judgment but nevertheless found herself bound to follow the earlier Court of Appeal judgment.

Of course, this might just seem a point that Lawyers nit-pick over in long courtroom debates. But it really could be significant in terms of the potential award which might be made.

So, whilst the size of the judgment is to be welcomed, it remains disappointing that the law does not compensate in this particular area for these lost years.

It is to be hoped that at some point in the future this is an area which a higher court may re-visit and consider overturning the earlier judgment of Croke.

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