Curtailing cross-border care claims: a case study

Kennedys acted in the defence of a catastrophic injury claim with significant cross-border quantum issues. Our involvement led to an eight figure saving in damages for our insurer client. The case is a demonstration of the difference between commercial care models proffered through expert evidence and the ‘on the ground’ reality of what an injured person and their family will accept by way of external support.

Background

The claimant suffered a severe traumatic brain injury when he was knocked off his bicycle by the defendant.

The claimant was a Polish national who had been working in the UK for a short period when the accident occurred. After receiving acute NHS treatment he returned to Poland to live with his parents. He was left with some cognitive and physical deficits, but had made a good functional recovery.

The claim

Despite the claimant’s return to Poland, his solicitors sought to implement a UK-led model. They retained a Polish-speaking UK case manager and a UK financial deputy, with Polish support worker and therapy input overseen from the UK.  

Both of the opposing UK care experts travelled to Poland to assess the claimant. The claimant’s expert recommended an initial trial of independent living away from the family home, thereafter transitioning to 24/7 paid care for life.

The claim assumed that, as case management is a developing industry in Poland, the UK case manager would gradually train up a local Polish case manager to supervise a lifelong care package.

The claimant’s legal team also argued that, despite his Polish residence, the UK financial deputy would manage the compensation award due to inadequate Polish alternatives.

As a result, the claimant’s pleaded schedule of loss exceeded £13 million, of which around £9 million was claimed for commercial care and case management. A further claim in excess of £1.5m was claimed for deputyship.

The defence

Kennedys and instructed Counsel Charles Bagot QC took various steps to scrutinise and challenge these elements of the claim, including:

  • Forensic analysis of the disclosed support worker records and invoices, particularly in relation to the hours worked and rate paid to the carers, which showed that only a limited commercial package was acceptable to the family.
  • With the assistance of our associate office in Warsaw, we served Polish witness evidence challenging the hourly rates recommended by the claimant’s expert. In effect, the rates recommended remotely by the claimant’s UK care expert and UK case manager were almost three times in excess of the usual market rate in Poland.  
  • Unlike the claimant’s approach, the defendant’s care expert assessed the hours that the claimant was actually receiving as a benchmark of reasonable needs. It was clear that light-touch support was working well owing to lack of behavioural difficulties or serious functional impediments.
  • Surveillance in Poland showed a high level of independence in the community, which contradicted the intensive care package pleaded in the claimant’s schedule.
  • The parties were ordered to jointly obtain Polish law evidence regarding financial safeguarding of vulnerable people. This confirmed that Poland has an equivalent system to the UK Court of Protection and that a Polish court would accept exclusive jurisdiction of any damages award paid to a Polish citizen resident in Poland.

Comment

In cross-border claims that include a UK model for major heads of loss such as care, it is vital to invest in thorough investigations ‘on the ground’ regarding the suitability and cost of local facilities, for comparison against hypothetical modelling by UK experts who may have limited experience or visibility of the domestic solutions. Particularly, where criticisms are made regarding local healthcare infrastructure in another country.

Cultural differences should be respected, because in many countries the claimant and/or their family may reject or resent significant external intrusion. In this case study, the claimant’s UK advisers faced spirited opposition from the litigation friend, and objected to perceived UK interference.

As a result Kennedys were able to secure a saving of more than £10 million compared to the claim presented.