Cerebral Palsy in UK Law

The combination of physical disability and learning difficulty is devastating. His cerebral palsy means that his movements are characterised by involuntary fluctuations of muscle tone. He is floppy at rest but his tone becomes stiffened when voluntary movements are attempted. He has some ability to reach out and operate switches and controls. He is demanding of attention, but in Dr Rosenbloom's view his personality is one area where he will continue to mature.

The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is "reasonable", I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item.

The paediatric neurologists in this case have assessed the claimant's life expectancy by reference to his mortality risks as a whole, not just those risks associated with his cerebral palsy. This is not one of those cases (such as Tinsley, Crofts or Smith) where the medical evidence relates only to the reduction in life expectancy caused by a number of identified factors specifically relating to the claimant and the injury which is the subject of the claim.

I readily accept that exercising in water is generally beneficial for him. However, I am not satisfied that the claimant has established a clinical need which cannot adequately be met by physiotherapy exercises carried out in an ordinary swimming pool with suitably trained carers and, occasionally, his treating physiotherapist. Consequently, I make no award for the costs of future aquatic physiotherapy.

We are reinforced in this view by the fact that in reality in this case the purchase was financed by a capital sum paid on account on behalf of the defendants by way of interim payments, and thus it may be appropriate to consider the annual cost in terms of lost income and investment, since the sum expended on the house would not be available to produce income. A tax-free yield of 2 per cent in risk-free investment would not be a wholly unacceptable one.

We were told that the overall value of the claim in this case may be around £1.5 million. The claimant is physically impaired for her entire life by cerebral palsy. In my view the balance of these considerations does make it proportionate and just as between the parties that this claimant is permitted to rely upon the reports of two obstetricians, not one; and the additional costs to public funds and share of the court's resources is also proportionate and just.

In my judgment, Gammell makes quite clear, what might be said to be less clear from Pickett, that the age of a victim is not as a matter of principle relevant to the issue of whether or not a claim can be made for the lost years. Further, the lack of dependants cannot be a factor which defeats a claim for damages for loss of earnings in the lost years. When it comes to the assessment of damages for the lost years the issues are evidential and not matters of principle.