Record compensation payout for accident victim

More than $6 million awarded

Nearly two decades after suffering a severe brain injury in a boating accident as a child, a Caymanian man has been awarded the highest personal injury compensation payout in the island’s history.

The victim, who was 12 when he was involved in the accident in 1998, was awarded more than $6 million in damages and to cover the cost of a lifetime of care.

Neither the victim nor the party responsible can be named because of an anonymity order imposed by Justice Malcolm Swift.

James Kennedy of Samson and McGrath, which brought the case on behalf of the accident victim, said the award was the highest on record for the Cayman Islands.

Responsibility for the accident was determined in an earlier court hearing, and interim payments have been made over the years since the accident to cover the cost of the victim’s care. A 10-day hearing was held in May to determine the total amount of compensation owed over the victim’s lifetime.

Experts examined medical reports and heard expert evidence on the level of care he will require.

The court heard that the victim suffers frequent seizures as well as attention and concentration lapses as a result of his injury and is unable to hold down steady work.

The compensation order also includes a lifetime of lost employment, healthcare and pension contributions suffered as a result of the incident.

The exacting process even extended to examinations of the victim’s primary school reports in an effort to determine his likely salary over a lifetime.

In his initial summary of the facts, Justice Swift wrote: “The plaintiff suffered a severe complicated brain injury requiring emergency neurosurgery and a frontal lobectomy, multiple lacerations and fractures to the facial bones, effective blindness in the right eye and reduced vision in the left eye, damage to the teeth and he required reconstruction of the skull …

“Considering the gravity of the injuries, the plaintiff has made a remarkable recovery. However his underlying difficulties and the life-changing effects of his injuries on his abilities, personality and behavior cannot be underestimated.”

The judge said the victim could not manage his own affairs or make decisions impacting his own life and was vulnerable to being preyed on by others. He said he was only able to function effectively because of the dedication and selfless support of his family, who were nearing the point that they could no longer cope.

The victim’s mother described her child before the accident as “a loving jubilant child, a normal boy playing marbles, climbing trees, stealing birds’ eggs and riding bikes.”

Lawyers for the defendants cited school reports indicating he was underachieving before the accident at age 12 as evidence that he would have gone on to low-paid work and was therefore entitled to a lower compensation award.

However, the judge sided with the argument from the plaintiff’s lawyers that he could have gone on to a career and earnings similar to that of his brother.

“I assess the entire family of the plaintiff as consisting of hard-working members of the community who each, in their lives and work, and despite adversity and personal problems, have surpassed their educational achievements and have aspired to succeed in their chosen careers.”

The judgment paves the way for a lifetime care regime to be put in place for the victim with the funds awarded to be administered by a professional trustee.

“The trustee of the fund must deal with the Plaintiff and his needs independently and without being subjected to undue pressure from the Plaintiff or from anyone else. The Plaintiff must be protected from himself. I have no hesitation in deciding that the appointment of a professional trustee is essential.”

The compensation order includes $2.6 million for future care and case management, $1 million in future earnings out of a total of $5.946 million, with additional costs associated with administering the award of damages still to be announced.

Samson and McGrath, which was instructed in the case from 2012, said in a statement, “After many years of patience from our client and his family, we are pleased to have successfully concluded the claim on his behalf with an award … in excess of CI$6 million.

“As well as this being the largest personal injury award of damages in the history of the Cayman Islands, it has also established legal precedent for the protection of vulnerable parties in the absence of a Cayman Islands Court of Protection and confirmed as a legal principle a 10 percent uplift in Cayman on personal injury damages from U.K. guidelines to reflect the higher cost of living.”

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