KAG suffered a catastrophic brain injury caused by near total deprivation of oxygen following umbilical cord prolapse. He was exposed to virtually 25 minutes of profound asphyxia. KAG was born by emergency Caesarean section on 26 June 2008 at the Queen Charlotte and Chelsea Hospital in London – a hospital renowned for its world leading maternity services.
KAG suffered a catastrophic brain injury caused by near total deprivation of oxygen. KAG has four-limbed, dystonic cerebral palsy but with a significant degree of retained intellectual ability. The expert evidence indicates his age equivalent development currently places him between the ages of two and a half and three years.
KAG is an only child. His mother, at the time of his birth, was aged 45. She is now aged 52. She has raised KAG single-handedly. His father has played no part in his life.
On 1 October 2013 at the Royal Courts of Justice, His Honour Judge Higgins gave judgment for KAG in relation to liability on the basis of an apportionment of 80/20 in the Claimant's favour. The case was hotly contested, close to trial. A settlement meeting had been held on 17 July 2013. The legal team felt there was a real risk of a Court finding that KAG's delivery by Caesarean section would not have occurred in time to save all or at least some of the damage. Given this and the 'all or nothing' nature of the trial, we felt a 80/20 offer on liability in favour of the Claimants should be accepted. This was not a decision taken lightly given the severity of the injuries with which KAG suffers and the lifelong consequences they will have for him.
KAG has a very long life expectancy. For compromise purposes, a mid-point to the age of 60.3 was adopted. The doctors at the hospital had told KAG's mother initially that he would not live beyond the age of 7.
The agreed terms were eventually reached after a constructive but unsuccessful settlement meeting on the 28th of May 2015, and then further negotiations at a second meeting on the 23rd June 2015. The settlement was approved at the Royal Courts of Justice before his Honour Judge Gore on 13 July 2015.
The case settled for a lump sum of £2.6 million with varying periodical payments ranging from £71,000 to age 13 to £112,000 thereafter until age 19 and then £167,000 for the rest of life. In addition there was a loss of earnings payment of £30,000 per annum from age 21 to retirement age.
The agreed terms represent a good outcome and should provide KAG with the security he will need throughout his life. In addition, the Defendant sought a Peters undertaking at the outset of the negotiations. This was firmly rejected, and eventually retracted by the Defendant. Therefore KAG is at liberty to apply for public funding to make good the 20 per cent shortfall.
By the time of settlement we had moved the Claimant to more suitable rental accommodation close to a fantastic school to meet his needs. We had secured private therapies and equipment for KAG with the result that he took his first independent steps. We have, with the help of KAG's deputy in our Court of Protection Team, bought a new permanent home complete with a hydrotherapy pool and space for the team of carers which are now providing much needed respite for KAG's mother.
Henry Witcomb of 1 Crown Office Row was instructed.
At the end of the case KAG's mother said:
"The great thing about Samantha is that she is so easy to talk to and that is so important when you have to relate your story of 'what happened'. She listened to me with great empathy … I was made aware of each step of the process as our case progressed and was able to make fully informed decisions as a result. I feel that Samantha works with great integrity and, as a result, I was able to place my complete trust in her to do everything she could to help my son.
"Our case was always going to be a difficult one to fight, but due to her experience and tenacity, along with that of Henry Witcomb, we have had a positive outcome. This means that my son's future is assured. I no longer have to worry about his financial security and can begin to be more of a mother to him. This means so much to us both."
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