Maximising

Minimising

·        s 2(4) of the Law Reform Act 1948 – disregarding the possibility of avoiding expenses by using free treatment available on the NHS

·        Claim for the chance of requiring treatment in the future e.g. knee or hip replacement operations

·        Claim for repeat procedures after first e.g. revision knee and hip operations

·        Ensure that all associated medical costs are claimed in respect of any particular recommended procedure such as hospital, anaesthetic, surgical, physiotherapy etc (and as well any loss of earnings or travel expenses)

·        Consider the need for annual reviews e.g. orthopaedic, neurological, pain management

·        Consider the need for regular tests or investigations such as X-rays, ultrasounds or MRI scans

·        Consider whether a pain management course may be of benefit (and if so whether this should be on an outpatient or residential basis)

·        Claim the costs of an annual prepaid prescription card

·        Establish that claimant is unlikely to make use of private facilities e.g. if there is no evidence of using such facilities in the past: Woodrup v Nicol [1993] PIQR Q104

·        Resist claims for any medical treatment which only has a remote prospect of success

·        Consider the reasonableness of the claims being made and whether the treatment or therapies can be obtained more cheaply elsewhere: see further Roberts v Roberts (1960) The Times 11, March

·        Discount for the chance that the same or similar medical treatment might have been needed at some point in the future anyway

·        Limit any claim for medical treatment and therapies to the length of any acceleration period

·        Discount for the chance that some prescriptions may have been necessary anyway due pre-existing problems

·        The Claimant will already be entitled to free prescriptions if on Income Support or over the age of 60 in any event

Maximising

Minimising

·        Obtain factual witness evidence from private trust lawyers regarding the likely future costs to include all court fees, professional receivership fees and any associated expenditure

·        Claim for the cost of accountancy assistance preparing annual tax returns (which would not otherwise have been necessary but for the negligence)

·        Take into account likely increases in fees in respect of the introduction of the Mental Capacity Act 2005 coming into force in April 2007

·        Potential to include a claim for a discretionary trust even where the Claimant is not a patient: see further S v L (settlement May 2006) reported in PI Focus, Vol 16, Issue 5, September 2006, p 33)

·        Discount claim by the extent of any contributory negligence: Willbye v Gibbons [2003] EWCA Civ 372

·        Master Lush’s evidence in Eagle v Chambers (No 2) [2004] EWCA Civ 1033 suggested that the costs for a professional receiver were likely to exceed £3,500 pa plus VAT; consider obtaining own factual witness evidence

·        Consider whether professional fees may be reasonable in the short term but thereafter whether a family member might take over once all the major expenditure has occurred and things have settled down after the litigation has ended

·        Investment advice is not recoverable in law whether or not the claimant is a patient: Eagle v Chambers (No 2) [2004] EWCA Civ 1033; Page v Plymouth Hospitals NHS Trust [2004] EWHC 1154 (QB)

Maximising

Minimising

·        There is a presumption of normal life expectancy until the contrary is proved: Rowley v London and North Western Railway (1873) LR 8 Ex 221)

·        Consider claims for “lost years” even in cases of young claimants notwithstanding the lack of dependants:  see Iqbal v Whipps Cross University Hospital : [2006] EWHC 3111 (QB), 8 December 2006

·        Where the claimant provided care to others prior to his or her injuries consider a claim for the lost ability to care for others: Lowe v Guise [2002] EWCA Civ 197

·        Household chores, DIY, decorating, home maintenance, window cleaning, care servicing

·        Alternative treatments: see McMahon v Robert Brett & Sons [2003] EWHC 2706 (QB) re aromatherapy and George v Stagecoach [2003] EWHC 2042 re acupuncture and Chinese herbs

·        Increased cost of holidays (including cost of increased leg room re flights)

·        Reduced or loss of state pension (NB if no longer paying NIC as a result of being unable to work due to injuries)

·        Claims should be resisted which are unknown to the law or too speculative

·        Benefits not included in CRU: HB, CT, WTC etc: Clenshaw v Tanner [2002] EWHC 184; Smith v Rod Jenkins [2003] EWHC 1356

·        Discount future loss for accelerated receipt and contingencies

·        Acceleration cases: Kenth v Hiemdale [2001] EWCA Civ 1283

·        Handicap on the labour market in any event: Morgan v Millett [2001] EWCA Civ 1641

·        NB re multipliers for future DIY, decorating etc use Ogden Tables 3 to 14 rather than Table 28 because builds in a mortality discount.

·        Credit for the domestic element (especially for fatal cases and lost years claims): Lim Poh Choo v Camden and Islington AHA [1980] AC 174

·        Where damages are awarded by way of periodical payments, in the absence of a multiplier, discount the annual payment to take account of contingencies