Catastrophic injury: calculating care costs

There are few reported Scottish decisions on damages for catastrophic injuries, so the court’s approach in Clark v Greater Glasgow Health Board [2016] CSOH 126 to some of the heads of claim often sought in such cases is of interest. The pursuer claimed damages after suffering brain injury at birth. Although she failed to establish negligence on the part of the defenders’ midwifery and medical staff, Lord Stewart produced a note on the damages he would have awarded if the pursuer had been successful.

These damages would have included the cost of setting up and the annual cost of administering a personal injury trust. The most significant head of claim which was disputed covered future care, support and case management. The pursuer suffered from athetoid cerebral palsy and needed care all day, seven days a week. The annual difference in cost between the figures calculated by the parties was roughly £80,000. The main reason for the difference was that the pursuer’s calculations were based on the agency model of care provision, whereas the defenders’ expert used a direct-employment model; the choice of model had a significant impact on hourly rates.

Lord Stewart did not consider the direct-employment model as costed by the defenders’ expert to be entirely appropriate, and he regarded the model suggested by the pursuer’s expert as unnecessarily expensive. Having assessed the evidence, he took what he referred to as “a weighted average approach” (paras 31-35), which brought out a total figure broadly midway between the parties’ valuations.