Supreme Court
Action No. 142 of 1998
29th February, 2000
Shanks, J

Mr. Leo Bradley for the Plaintiff
Mrs. Marilyn Williams for the Defendant

Assessment of damages - Application made by next of friend on behalf of minor - Settlement out of court by parties to Action - Approval of court necessary in respect of any settlement - O.78, r.1 SCR - Purpose for court to approve settlement in settlements of damages made out of court involving minors.

J U D G M E N T

1. This is a claim by a minor for damages for personal injury. The basis of the claim is that between 25th and 30th January, 1997 she was administered with the drug Epamin which had been supplied by the Defendants in error.

2. Epamin is a drug used in the treatment of epilepsy. It tends to depress the nervous system and in the wrong dosage can have an intoxicating effect, causing confusion, slurred speech, twitching, gastro-intestinal problems and eye movement. The normal treatment for such effects is to stop the drug and let the body metabolize it, after which the patient generally returns to normal.

3. On 29th January, 1997 Kiren, who was then three, complained to her father that she could not see. Then she became delirious, was unable to walk and was vomiting. By 30th January, 1997 she was suffering "incoordinated movements, ataxia nausea and mental confusion". Kiren was admitted to hospital on 30th January, 1997 and discharged on 1st February, 1997. According to the statement of claim, her injuries included … probable mental and cognitive impairment, possible permanent disability". And, according to the written submission put in by Mr. Young at p.6: "The Plaintiff will say that there was a marked deterioration in her child's alertness and intelligence after she suffered this mishap. This reflected itself in her schoolwork. To ascertain if there are any long term disabilities that Kiren will suffer from the injury, it would be necessary to undergo certain tests which cannot be conducted in Belize, and which the parents of the child cannot afford".

4. The case was called on 17th February, 2000. I raised with the attorneys the difficulties presented in relation to assessing damages raised by this unclear prognosis and suggested that further medical evidence be sought. In any event, the case was adjourned to 25th February, 2000. On that date the parties announced that they had settled the case for $10,000.00. No application was made for the Court's approval for this settlement but I am clear that my approval is required by virtue of Ord. 80 r.10 of the English RSC (as applied by the Belizean rules by Ord. 78 r.1 SCR). I am also satisfied that I am required to give directions as to the destination of the money (see Ord. 80 r.12 English RSC).

5. The purposes of the approval of a settlement made by a minor or other person under a disability are as follows:

   (a) to protect minors and patients from any lack of skill or experience of their legal advisors which might lead to a settlement of a money claim for far less than it is worth;

   (b) to provide means by which the Defendant may obtain a valid discharge from a minor's or patient's claim;

   (c) to ensure that lawyers acting for a minor or patient are paid their proper costs and no more;

   (d) to make sure that money recovered by or on behalf of a minor or patient is properly looked after and wisely applied.

   (see notes in White Book Vol. 1 at para. 80/10 - 11/1)

6. It therefore seemed to me in this case that it was necessary to satisfy myself about the prognosis and about the level of costs being taken by the Plaintiff's attorneys before I could approve the settlement. I therefore allowed Drs. Arriaga and Estradabran to be called to give evidence. They were both of the view that, notwithstanding the mother's fears, long-term effects were most unlikely and that further tests would serve no useful purpose. I accept that evidence. The Plaintiff's attorneys' costs were put at $3,014.50 which seemed a reasonable figure. This left approximately $7,000.00 representing the Plaintiff's compensation. My own rough estimate of the appropriate level of damages assessed on the basis that the doctors' evidence is correct would be about $6,000.00 at most. I therefore regard the settlement as a reasonable one which ought to be approved.

7. The settlement money remaining after costs have been paid should be paid into a trust account which can only be used to pay private school fees and the balance of which should be paid to Kiren when she is 18. Kiren's next friend and mother indicated to me that in spite of the doctors' opinion she would intend to spend any damages in part to pay for further tests on Kiren (in particular and MRI scan) which might cost up to $4,000.00. While I fully understand her maternal desire to have such checks carried out I could not, on the doctors' evidence, approve such expenditure from the damages: the purposes for which they can be used until Kiren is 18 are therefore confined to private school fees as I have already indicated.

8. There is annexed to this decision a copy of the order I propose to make to put this decision into effect.

ACTION NO. 142

ORDER

BEFORE THE HONOURABLE Mr. Justice Shanks

In Chambers

Tuesday 29th February 2000

UPON HEARING the Attorney-at-law for the Plaintiff and the Attorney-at-law for the Defendants AND the Defendants making a proposal for settlement which the Plaintiff accepts the following terms are approved and made an Order of the Court:

1. The Plaintiff may accept the sum of $10,000.00 in full and final settlement of the claim herein;

2. That sum shall be paid by installments as follows:

   (a) $5,000.00 to be paid as soon as the Plaintiff's attorneys have indicated to the Defendants' attorney details of the bank account to be established pursuant to para. 4 below;
   (b) the balance shall be paid by installments of $1,000.00 payable on 31st March 2000 and at the end of each of the four subsequent months;
   (c) provided that if any installment remains unpaid for 15 days then the entire remaining balance shall become payable immediately;

3. Of the sum of $10,000.00, $3,014.50 shall be paid direct to the Plaintiff's attorneys in respect of their fees;

4. The balance of the $10,000.00 shall be paid into a trust account to be established at such bank operating in Belize as the Plaintiff's next friend shall designate to be held by her on trust for the Plaintiff;

5. The Plaintiff's next friend may expend money from that trust account only for the purpose of paying school fees for the Plaintiff at a private school if she should consider it to be in the best interests of the Plaintiff to attend such a school;

6. The balance of any moneys in the trust account with all interest accrued thereon shall be paid to the Plaintiff when she attains 18 years of age;

7. Liberty to the next friend or any other interested party to apply to Court for the purpose of carrying this Order into effect.

BY ORDER

REGISTRAR