How are damages calculated in a birth injury clinical negligence claim? A family guide to the quantum process

Once the court has formally confirmed that the Defendant is responsible for your child’s injury, either fully or partly, the case moves into the “quantum” stage. This means working out how much compensation should be claimed to meet your child’s needs, both now and in the future.

This stage can feel lengthy and sometimes overwhelming, because it involves obtaining detailed evidence from many specialist experts. The reason for doing this is to build the clearest possible picture of your child’s needs. The aim is to secure funding for the care, therapies, equipment, accommodation, transport and other support that will help your child live as safely, comfortably and fully as possible.

The court will usually set a timetable for the evidence. This can include witness statements from family members and others involved in your child’s care and expert reports from a range of specialists. The timetable may also include meetings between experts, where experts in the same field discuss what they agree and disagree about.

Although an assessment of damages hearing will be listed, most cases settle before trial. The court will expect both sides to consider settlement options, such as a round table meeting or mediation, where appropriate.

In a serious birth injury claim, the court will usually give permission for several experts to provide written reports. These experts help explain your child’s needs in different areas of life. Sometimes the parties jointly instruct one expert. In other areas, each side may have permission to obtain its own expert evidence.

In this type of case, expert evidence commonly includes the following:

A care and case management expert looks at the help your child needs during the day and night, what care has already been provided by family, and what paid care package may be needed in the future. Case management is also considered, because a case manager can help coordinate therapists, carers, appointments, equipment, school input and the practical administration of the care package.

An accommodation expert advises on whether your child needs a different home, or changes to your current home, so that it is safe, accessible and practical. This can include the cost of buying or renting suitable accommodation, adapting the property, providing space for carers and equipment, and considering the additional running costs of a larger or specially adapted home.

An occupational therapy expert helps identify what equipment, practical support and adaptations your child needs for everyday life. They may advise on wheelchairs, adapted vehicles, standing frames, bathing equipment, hoists, seating, household items and other aids to support comfort, safety and independence.

A physiotherapy expert assesses your child’s movement, strength, posture and physical abilities. They may visit your child at home and sometimes at school. They will advise on what physiotherapy, hydrotherapy, specialist exercises or physical equipment may be needed now and in the future.

An educational psychologist advises on your child’s learning, development and educational needs. They may consider whether your child’s EHCP properly reflects the support they need, what school or post-19 provision may be suitable, and whether any appeal or further educational input may be needed.

A paediatric neurology expert looks at your child’s overall medical condition, their future needs and what their future is likely to look like. They may advise on issues such as epilepsy, movement difficulties, future medical treatment and life expectancy, which can be very important when working out the compensation claim.

A Court of Protection or Deputy expert advises on the likely costs of managing your child’s compensation if they will not be able to manage large sums of money themselves. This can include the cost of appointing a Deputy, ongoing Deputy work, security arrangements and related Court of Protection applications.

A paediatric neuropsychology expert looks at how a brain injury affects your child’s thinking, learning, behaviour, emotions and day-to-day functioning. They may also advise on sleep, behaviour management, emotional regulation, therapy and family support.

A speech and language therapy expert, often called a SALT, assesses communication and swallowing needs. This may include looking at how your child understands language, expresses themselves, speaks, eats and drinks. The expert can advise on therapy, communication aids and future support.

An orthopaedic expert looks at bones, joints, posture, muscle tightness and movement-related issues. They may advise on whether surgery, injections, orthotics or other treatment may be needed, and what future review or rehabilitation is likely to cost.

An assistive technology expert advises on technology that may help your child communicate, access learning and leisure activities, control parts of their environment, and support independence and safety. This might include communication devices, tablets, specialist software, mounts, environmental controls and equipment for carers.
The Defendant will usually have permission to obtain its own expert evidence in the same broad areas. If the experts do not agree, experts in the same discipline may meet to discuss the issues and prepare a joint statement setting out what is agreed, what remains disputed and why.

A Schedule of Loss is a document that sets out the compensation claim in detail. It is usually split into past losses, future losses and interest.

• Past losses are costs already incurred, such as care provided by family or money already spent on equipment, therapy or travel.
• Future losses are costs expected to arise over your child’s lifetime, such as paid care, case management, therapies, accommodation, specialist equipment, transport, Court of Protection costs, education support and loss of earnings.

The Schedule is not a final award. It is the Claimant’s evidence-based case about what should be paid. The Defendant may respond with a Counter-Schedule, setting out which parts are agreed and which parts are disputed. The figures may change as further evidence is obtained, discussions take place, or the case moves closer to trial.

This is compensation for the injury itself and the impact it has had, and will continue to have, on your child’s life. It looks at pain, discomfort, loss of independence, reduced enjoyment of activities, and the wider effect of the injury on day-to-day life.

A claim can be made for reasonable costs already incurred because of your child’s injury. This might include care provided by family, paid care and case management, therapy costs, travel, equipment, continence products, additional clothing or bedding, laundry, accommodation costs, deputyship costs and other practical expenses. We may ask you to help by keeping receipts, invoices and a note of payments made where possible. Some past costs may be estimated up to trial and updated later.

Interest may be claimed on some past losses. If interim payments have already been made, these are taken into account. An interim payment is an early payment made before the final settlement or trial, often used to fund urgent needs such as care, therapy, accommodation or equipment while the case continues.

This is often one of the largest parts of a birth injury claim. It looks at the paid care your child is likely to need in the future, including daytime care, night-time care, support during school holidays and other costs involved in running a care team. Case management is also included because a case manager can help organise and oversee the care package, therapies, appointments, equipment and professional support.

The claim can include the cost of buying or renting suitable accommodation, adapting the property, relocating, fitting specialist features such as lifts or adapted bathrooms, providing space for carers and equipment, and covering the additional running costs of a larger or specially adapted home. The Schedule may also give credit for housing costs that would have been incurred even if the injury had not happened.

The claim may include the cost of therapies your child needs now and in the future. This can include physiotherapy, hydrotherapy, occupational therapy, speech and language therapy, psychological support and related input such as therapy planning, reports, travel time and attendance at multidisciplinary meetings. The aim is to make sure therapy is properly funded and coordinated around your child’s needs.

The claim may include specialist equipment to help with communication, mobility, personal care, therapy, play, safety and independence. This can include items such as wheelchairs, hoists, specialist beds, seating, communication devices, tablets, specialist software, environmental controls, sensory equipment, therapy equipment, bathroom equipment, continence products, protective equipment, adapted play equipment and additional household costs such as laundry, cleaning and bedding.

Some claims include future medical costs, such as specialist reviews, surgery, injections, rehabilitation after treatment and ongoing monitoring. For a child with cerebral palsy or movement difficulties, this may include orthopaedic review, surgery, botulinum toxin injections, and physiotherapy or hydrotherapy following treatment.

Psychological support may be claimed for your child and, in some cases, for the family. This can help with emotional regulation, behaviour, coping strategies, family wellbeing and supporting the wider professional team. The level of support may change as your child gets older.

Educational evidence can help identify what support your child needs at school and beyond. This may include monitoring by an educational psychologist, advice about specialist provision after school age, assessment of suitable post-19 placements, visits to educational settings, and support with an EHCP appeal if the education plan does not provide enough support.

Some children need a wheelchair accessible vehicle, extra travel to medical and therapy appointments, additional mileage, insurance, vehicle servicing, breakdown cover, adaptations and support with transport.

The claim includes additional costs that help your child enjoy ordinary family life as far as possible. This may include the extra cost of accessible holidays, carers’ accommodation, accessible transport, equipment hire, increased travel insurance and specialist activity breaks. These claims are intended to recognise that holidays and activities may cost more when a child needs specialist equipment, accessibility and carer support on holiday.

If a child has suffered a significant brain injury, they may not be able to work and earn money in the same way they would otherwise have done. A claim can therefore be made for future loss of earnings. This is usually worked out by looking at what the child may reasonably have been expected to earn in adult life, taking account of the educational and employment evidence. It may also include pension loss.

Sometimes, the medical evidence suggests that a child’s life expectancy may be reduced. If that is the case, a claim may also be made for the earnings and income the child would have received during the years of life that have been lost. This can include things like pension income as well as wages.

If the claim settles and your child is awarded compensation, the money may need to be managed by a Deputy appointed by the Court of Protection. This is usually needed where a child will not be able to manage large sums of money themselves. The Deputy’s role is to make decisions about the compensation in your child’s best interests. The claim can include the likely costs of appointing a Deputy, ongoing management of the fund, supervision fees, security bond costs, possible changes of Deputy, statutory will applications and winding-up costs at the end of the Deputyship.

After a Schedule of Loss is send to the Defendant, the Defendant will usually review the Schedule of Loss and decide which parts it accepts and which parts it disputes. It may serve a Counter-Schedule. The experts may then meet with experts in the same field to discuss their views and prepare a joint statement setting out what they agree and disagree about. This helps everyone understand the real issues between the parties.

There may then be settlement discussions, such as a round table meeting or mediation. If the case does not settle, the court can decide the amount of compensation at an assessment of damages hearing but this is very rare as cases normally settle at a round table meeting.

The compensation claim is made up of many different parts, as set out above. Some losses are worked out over your child’s lifetime and then converted into a single lump sum. That lump sum is then usually invested and managed by the Deputy for your child’s benefit. Most parts of the claim are paid in this way, although care and case management are often dealt with differently.

Some future costs, particularly care and case management, may be paid as yearly payments rather than as one lump sum. These are called periodical payments. They are usually paid for the rest of your child’s life and are designed to change each year in line with inflation. This helps make sure that funding remains available to meet your child’s care needs in the future.