Government settles ‘secret’ brain damage case

Monday 11 November 2019

Details of a significant compensation settlement paid out to an islander who suffered life-changing head injuries as a child – for which the government has accepted responsibility – are to be kept secret.

Legal proceedings in relation to the damages claim against the government, which is believed to be in the millions, have been rumbling on for years.

However, the lawsuit’s existence only came to light for the first time this week in a published judgment of the Royal Court.

It’s one of the few major cases to be dealt with by the government since the introduction of the new Damages Law, which the Chief Minister recently credited for reducing two pay-outs by as much as £45m collectively.

Pictured: The Assembly recently passed a new Damages Law.

Despite some details of the settlement now being in the public domain, government officials have declined to reveal the overall compensation sum or the exact allegations against the former Minister for Education, Sport and Culture, who accepted responsibility for the "serious" head injury.

All that is known about the recent case is that the injuries were so catastrophic that the child – now an adult – still suffers from “continuing neurological and cognitive impairment."

A damages claim was then brought against the Minister, who has legal responsibility for all staff and facilities within their department, while the islander was still a child.

However, a decision on the overall quantum of compensation was until now impossible to reach, as the full effect of the “traumatic brain injury” could not be measured until the plaintiff had reached maturity.

In common with similar injury claims, it had to take into account the level of care needed by the islander and their loss of earnings resulting from the injury.

In the end, the islander was awarded an undisclosed lump sum payment, as well as his legal costs. 

Although the case has now been settled, the full background to the significant settlement is to remain confidential.

Government officials declined to provide further details of the case or the overall compensation sum when asked by Express.

Pictured: The case involves an adult who suffers “continuing neurological and cognitive impairment”.

They did confirm, however, that the compensation sum had been met by its Public Liability Insurance.

Providing details of their cover, a spokesperson explained: “The States of Jersey buys public liability insurance covers in two ‘layers’ – the first layer (i.e. the Primary level of £10 million) covers all claims up to £10m per annum and, in the event of this first layer being exhausted by claims during the year, the second layer (i.e. the excess level) then responds.

“The monetary limit of cover for each policy is £100m for any one claim and in total. The non-ranking monetary excess for each policy is £500 for each and every claim (this is paid for from department budgets). 

“The monetary amount of self-insurance in respect of personal injury is £100,000 for any one claim (this is paid for from a ring-fenced insurance specific budget). The total of self-insurance aggregated in any one year across the general Government insurance programme is £4.5m.”

The settlement in the case of the islander with brain damage was finally agreed in September, and came following the introduction of the new Damages Law, which was designed to reduce the government’s exposure to massive liability claims.

In a States Assembly meeting last month, the Chief Minister explained that the new law had been “instrumental” in reducing the value of two significant claims against the government.

He said that one existing claim had reduced from approximately £19m to £8m and another from £49m to £15m, adding: “Overall, that is about a £45m reduction in the claims as a result of that law.”

It is unclear whether his comments related to the present claim.

Pictured: The Chief Minister made comments about the new damages law during the States Assembly last month.

Senator Le Fondré continued: “The law is also having a positive impact on the length of proceedings, saving the claimant, the defendant and the court time and money that was previously spent on arguing about these matters. Furthermore, I understand that the Damages Law was cited as a positive development during the recent tendering process renewal of the Government’s own insurance arrangements.

“I am sure, or I hope, that this Assembly will agree that it is all very good news and justifies the action we took at the beginning of my term of office of putting the law in place.”

The new Damages Law made provision for the setting of a ‘discount rate’, which reduces the sum paid out by the amount the claimant is expected to earn on interest by investing their compensation to ensure that they are not ‘over-compensated’.

It also created ‘periodic payment orders’, allowing defendants to pay out compensation in chunks rather than in a single lump sum – something that was not previously possible.

English specialists in “catastrophic injury claims” advised against periodical payments in the case of the islander with brain damage, as the amount paid out can be varied at a later stage should there be a “material change of circumstances”.

They noted that what might constitute such a “change” was yet to be defined in regulations, creating “considerable uncertainty” for the claimant.

The specialists therefore concluded that a lump sum payment would be in the interest of the islander that suffered a head injury to allow him to “put this litigation behind him safe in the knowledge that, if there were to be any improvement, this would not immediately lead to an application to reduce his damages at some point in his lifetime”.

His parents accepted the advice, as did the plaintiff’s representative Advocate Dionne Glibert, who subsequently accepted the settlement offer made by the government.

Her decision was then approved by the Royal Court.