With the Personal Injury Discount Rate remaining in negative territory, arguments for the traditional Roberts & Johnstone approach to be replaced are likely to gather pace. Based on the decision in JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 and a PIDR of minus 0.25%, the value of future accommodation claims is still zero.

In both JR and the subsequent decision of Lambert J in Swift v Carpenter [2018] EWHC 2060, it was acknowledged that the Roberts formula was an imperfect way of resolving future accommodation claims in the current circumstances.  In Swift various mechanisms were proposed ranging from one based on a lifetime interest only mortgage (producing a significant windfall to the Claimant) to lifetime private rental costs (for a Claimant who did not want to rent and unfeasible when property modifications are borne in mind).  All were rejected by the judge who valued the future accommodation claim at zero. Some commentators have suggested other solutions including involving loans from the Defendant who would take a charge over the property.

The practicalities are a significant hurdle, not least the fact that the court has no power to order a charge in such circumstances. What is clear is that the Court of Appeal will need to adjudicate on the issue and find a workable solution which provides fair and appropriate resolution for both parties.  In the meantime legal representatives in all types of catastrophic injury claims will continue to put forward pragmatic ways to resolve this head of loss.

Medical Malpractice Forward View 2020

This article is part of Capsticks’ Medical Malpractice Forward View 2020. Read the other articles featured in this publication below:

• Spotlight on seven key decisions in 2020 affecting healthcare providers and insurers
• Paterson Inquiry report due in early 2020
• The new Clinical Trials Regulation – implementation date likely to be delayed
• Further developments in telemedicine, AI and robotics will bring opportunities, challenges and risk for businesses in the MedTech sector
• Fixed Recoverable Costs should contribute to controlling the rising costs of clinical negligence claims, but there is further work to be done
  
• Mediation and other forms of dispute resolution are set to continue rising in medical malpractice claims
• Challenges to dishonest claims against health providers will continue to rise.

Get in touch

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.