(–)3.75% Discount Rate Applied in £238 Million Claim? X Children v The Minister for Health (2018)

A £238 million personal injury action has been brought by victims of abuse in X Children v the Minister for Health (2018). This is believed to be the biggest personal injury claim in British history. We report on this case, since the value of claim has been inflated by a (–)3.75% discount rate. The current rate in England and Wales is set at (–)0.75%. However, the Government is seeking to overturn Wells v Wells [1998] 3 All ER 481, on the how the rate is set, in the Civil Liability Bill.[i]

Two siblings were subjected to a catalogue of sexual, physical and emotional abuse over a number of years, by an ‘unknown’ number of people, in their ‘chaotic and uncaring’ family home. The pair ‘ate from the kitchen floor’ in unhygienic conditions, witnessed their mother self-harming, and were also ‘smacked’ and locked in their rooms. Described as the ‘most damaged children’ in Jersey, who ‘will never recover’ from the ‘psychiatric and psychological consequences’ of abuse, they are in the process of suing the Minister for Health & Social Services in negligence.[ii]

The defendant made an offer of settlement for £14.5 million (£10.289 million for ‘Plaintiff 2’ and £4.25 million for ‘Plaintiff 3’), but the claimants are still pursuing £238 million in damages at trial (‘Plaintiff 2’ and ‘Plaintiff 3’ are claiming £121 million and £117 million, respectively). As well as general damages for pain suffering and loss of amenity, the claimants are also claiming special damages for future care and loss of earnings. It has been submitted that the claimants, who are currently sectioned, will require the support of an institutional setting indefinitely, given their ‘complex needs’.

At the trial on Quantum, which began last month and is scheduled to last 8 weeks, the Health Minister accepted that the claimants should have been removed and placed into care sooner. However, Counsel for the claimant argued:

‘The sad fact is that they weren’t and the result of them not being removed is that they were the subject of sexual abuse, physical abuse, physical neglect and emotional neglect’.

Commissioner Pamela Scriven QC, Jurats Paul Nicolle and Sally Sparrow, sitting at the Royal Court of Jersey, were told that, if the claimants were to return home and receive 2:1 care, the estimated care costs would be £260,000 a year, exclusive of additional rent and support workers fees.

The Court will soon hear from economists, actuaries and accountants, who will attempt to establish the likely cost of future care, based on predicted levels of inflation over the following decades.[iii]

The result of this case may affect the outcome of any future changes to the Ogden rate.

 

[i] ‘X Children v Minister for Health & Social Services’ (Crown Office Chambers) <https://www.crownofficechambers.com/2018/06/14/x-children-v-minister-for-health-and-social-services/> accessed 5 July 2018.

[ii] Krysta Eaves, Two abuse victims sue States for £238 million’ (12 June 2018 Jersey Evening Post) <http://fy68w4dd72j1r1z33vbuky14-wpengine.netdna-ssl.com/wp-content/uploads/2018/06/XChildren1.pdf> accessed 5 July 2018.

[iii] ‘"Damaged" siblings' care costs examined in £238m abuse lawsuit’ (15 June 2018 Bailiwick Express) <https://www.bailiwickexpress.com/jsy/news/royal-court-hears-more-evidence-abuse-compensation-case/#.WyOu7RbTWEc> accessed 5 July 2018.