This was a personal injury of highest severity. The Claimant, aged 6 suffered a near drowning whilst attending a council run swimming pool. He was a non-swimmer, who was not wearing any buoyancy aid and had wandered away from his father who was supervising 3 other children.
After more than 12 years hard fought litigation with the Council disputing liability throughout, we secured a settlement of £13million.
THE TRIAL
The Court saw from CCTV footage the Claimant entering the pool from the side and then disappearing underwater.
Critical to this course of events was that the Claimant was unobserved by the Defendant’s lifeguards for what was agreed to be at least 2 minutes 47 seconds. He was discovered and rescued by a member of the public in the pool.
Resuscitation attempts were made at the poolside. He appeared at first to be lifeless. The poolside resuscitation and the work of an ambulance team saved his life but the Claimant has been left with significant brain damage due to oxygen deprivation.
It was very much a case of silent drowning. The common held belief that an individual in trouble will make lots of noise and movement is not necessarily the case. This makes it additionally important for the lifeguards to remain vigilant at all times. There were two periods of inadequate oxygenation. The fperiod of starvation of oxygen to the brain was due to the continuing presence of water in the lungs.
The experts on both sides agreed that on the balance of probabilities the Claimant aspiration water into his lungs within about a minute of submersion.
The Defendant, for some reason, did not call any evidence from their lifeguards who were on duty. The Judge found that the lifeguards were negligent in not observing him and not carrying out a speedy rescue.
The Judge made a finding of fact that the Defendant’s lifeguards ought to have identified the Claimant as a “person of interest” before entering the pool and thus to have effected a rescue within 30 seconds.
At the time the Claimant was rescued, three lifeguards were in close proximity to the point where he was found and the post-accident investigators and indeed the Court was puzzled as to how this accident happened, given the presence of so many lifeguards so close to him.
The Defendants chose not to call any of the lifeguards to give evidence which the Judge found highly unsatisfactory. The Defendants were therefore unable to show what zone was allocated to which lifeguard, whether there were any and if so, what problem with visibility, whether and if so how they were distracted in any way, what their training was and how they could account for their failure to notice the emergency at any stage.
We invited the Court to infer from this that the 3 lifeguards failed (2 of whom were in prime positions) to see from a range of about 7 or 8 metres the movements of the Claimant over a lengthy period.
Through superb cross examination by Bill Braithwaite QC, Counsel for the Claimant, the Defendant’s expert conceded that had the Claimant been rescued early (ie within 30 seconds to 1 minute) after the water had begun to enter his lungs, the Claimant should have made a rapid and full recovery.
The Court accordingly gave Judgment on a full liability basis in favour of the Claimant in June 2015. The amount of compensation was to be addressed at a later date.
However, the Defendant applied for permission to appeal and this was granted by Jackson LJ and the matter was listed for Appeal before the Court of Appeal to be heard in June 2017.
The Court of Appeal also ordered that the parties enter into alternative dispute resolution.
A few weeks before the Appeal, the parties attended a mediation/neutral evaluation before Dame Janet Smith, herself a retired Court of Appeal Judge.
Ultimately, a final offer of settlement for the entire claim was put forward by the Defendant for £13million which was ultimately approved by the Court.
THE CLAIMANT’S INJURIES
The Claimant suffered catastrophic injuries. The neuropsychological evidence confirms severe impairment of cognition and behaviour caused by brain damage sustained in the accident. The nature and severity of his condition means that he will never be capable of employment in any capacity, he will never be able to live independently and he will never gain capacity to manage his property and financial affairs.
Consequently, the Claimant requires care, support, therapy and case management for the remainder of his life. Unfortunately the Claimant and, more importantly, his mother and litigation friend, have had to “make do” with the basic support provided by the local authority.
The Claimant has been cared for throughout by his mother. She has done so selflessly, at times putting her own health in issue.
He has and will continue to need help or supervision in different aspects of personal care, his lack of understanding of money, his lack of awareness of risk or danger, his impulsive unpredictable behaviour and his need for structure and support. Because of the dispute on liability, the Claimant has been denied the opportunity of rehabilitation which might have improved his situation. His recovery has been incomplete and will remain so. His mental development has been severely disrupted and restricted. He remains highly dependent and vulnerable with a poor quality of life.
The settlement was carefully calculated to cover future care and case management, earnings, aids, equipment and holidays, treatment, adapted accommodation and ongoing Court of Protection costs.
C, a successful business man, was assaulted and suffered a serious traumatic brain injury. Despite a period of intense rehabilitation and some improvement, he suffered from permanent problems affecting his decision making, memory learning and speech together with physical weakness on his left side and spasticity. C was and still is a very intelligent man and his injuries were a great source of frustration to him as he gradually gained more insight into them and the limitations they placed on him. He could still manage his own affairs but often made poor decisions.
He made a claim for compensation through the Criminal Injuries Compensation Scheme and he chose a local firm of solicitors from the phone directory who advertised personal injury services.
He did not have the benefit of a brain injury case manager and relied on his mother who had her own health issues, for care.
After 3 years his award was assessed at £300,000 but only based on a moderate brain injury rather than a serious/severe injury. It also assumed that he had a future earning capacity.
Unfortunately, his solicitors simply handed his settlement to him without putting in place the usual assisted capacity protections for someone who whilst was perfectly capable of making decisions would invariably make the wrong ones such as a case manager, financial advisor or setting up a personal injury trust with a co-trustee.
C was vulnerable and was taken advantage of by persuading him to make a bad business investment. He lost his house and was evicted leaving him wholly reliant on the state and his mother for care. He was in a bad way. He fell into considerable debt and desperate.
C came to see specialist brain injury lawyer Tristan Holdom at Tollers when other large serious injury firms had turned him away. Biggest isn’t always best. He had no money but Tristan could see that he had not been given the best advice or had his claim assessed correctly. He agreed to help him, initially without charge, to appeal the review decision and try and re-open his case.
Guiding him and his partner through the appeal process, drafting statements and gathering medical evidence, C then bravely gave excellent evidence to the appeal tribunal against resistance from the CICA. We were successful in re-opening his case and we then set about making sure he was fully and properly compensated and more importantly, supported following settlement to ensure the funds were protected to help him and his family through the remainder of his life.
Working as a team, we secured a revised award of £500,000 which is the maximum amount under the scheme.
We placed this in a special trust which protected his state benefits and allowed him to remove, overnight, the stress of his mounting debts and plan for his family’s future.
With hindsight, C said that whilst he was very glad he came to Tollers, he wished he had done so from the start. The compensation is only part of the jigsaw, it’s as much about supporting the client and the family before, during and after the case.
