Compensation and Brain Injury: Life Expectancy, Structured Settlements and the Tort System – Ensuring Adequate Compensation for the Catastrophically Injured?
The court’s willingness to receive evidence respecting life expectancy, the methods of calculation and the experts retained in discerning life expectancy and the use of annuities, where life expectancy is a built-in expectation, have significant impacts on the compensation for the significantly brain injured.
Evaluating life expectancy is obviously fraught with difficulty both for the experts who attempt to provide life expectancy opinions and the courts who attempt to make those decisions.
The courts willingness to rely upon life expectancy opinions, the weight they give to statistical data versus observations of clinical physicians is significant in their making determinations. As well, the legislation which governs awards of damages in cases of catastrophic injury has significant impact. For example, in some provinces in Canada, legislation mandates that judgments be paid periodically, often with the purchase of an annuity.
In some jurisdictions, the courts are more willing to rely on the annuity and its inherent assumptions with respect to life expectancy in order to discern the damages payable. In others, annuities must be negotiated so are subject to the vagrancies of interest rates in the jurisdiction at the time.
The difference in the modalities of dealing with these issues both in the legislative and common-law perspective will be discussed for Canada, the United Kingdom and Australia. The purpose allowed for physicians and other experts dealing with issues of life expectancy to gain some perspective of the court’s processes in order that they may be of greater assistance and have a greater understanding of the process.
For your reference, we will submit a brief biography of R. Brian Webster as a separate abstract.