Aiden Oxborrow (A Minor and Protected Party through his father and Litigation Friend Rory Oxborrow) v West Suffolk Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 20 April 2012 |
| Neutral Citation | [2012] EWHC 1010 (QB) |
| Court | Queen's Bench Division |
| Date | 20 April 2012 |
| Docket Number | Case No: HQ10X03526 |
[2012] EWHC 1010 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ10X03526
Martin Spencer QC (instructed by Ashton KCJ) for the Claimant
Adrian Hopkins QC (instructed by Kennedys) for the Defendant
Hearing dates: 4 April 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant was born in October 2006 and so is now aged 5. He suffers from Quadriplegic Cerebral Palsy. His disabilities are severe. He has very limited mobility, significant medical problems and severe cognitive impairment. He has very limited vision. He requires constant supervision and 24 hour care. He was born at West Suffolk NHS Hospital in circumstances which gave rise to this claim for negligence. Liability has been admitted and on 8 November 2010 judgment was entered for damages to be assessed. An interim payment of £100,000 has been made.
On 28 March 2012 the Claimant issued an application notice in which he asked the court to order that the Defendant make an interim payment on account of damages in the sum of £740,000 to provide suitable accommodation for the Claimant. After the hearing I indicated that I would make that order and give my reasons in writing later, as I now do.
The only schedule of damages, and the only evidence, before the court is that put forward on behalf of the Claimant. The Claimant's schedule of loss is dated 13 December 2011. It would have been provided in September 2011 but for a further catastrophe that befell the Claimant. On 21 August his mother died suddenly. He is now cared for by his father with the assistance of carers. He lives with his father and his little sister in a rented bungalow.
The evidence before the court includes statements made by the Claimant's mother in October 2010 and May 2011 and by his father in October 2011. There is a report dated 27 June 2011 from the following: Dr Rosenbloom, Consultant Paediatric Neurologist dated 27 June 2011, Claire Broughton, Occupational Therapist, dated 26 July 2011, Mary Clegg, Chartered Physiotherapist dated September 2011, Leslie-Caroll Few, Paediatric Speech and Language Therapist, dated August 2011, Albert Reid, Chartered Educational and Clinical (Child) Psychologist, dated May 2011, and Stephen Cumbers, Architect, dated July 2011.
Mr Cumbers visited the Claimant's home in February 2011. His report is very detailed. He recorded that the family had been living at that rented bungalow since July 2009 paying rent of £595 per month. It has undergone no adaptations apart from the installations of ceiling mounted hoists in the Claimant's bedroom and the family bathroom and a temporary ramp to the back door. There is no other means of wheelchair access. It is in a village about eight miles south west of Norwich. It has a number of deficiencies as a home for the Claimant which Mr Cumbers describes. It has a floor area of 96.29 sq meters, whereas in the opinion of Mr Cumbers, what is required is a floor area of more than twice that amount namely 193 sq meters. It is unnecessary for me to set out the deficiencies in the property, because it is common ground that it is unsuitable for the Claimant. Having considered bungalows that might be suitable for adaptation to meet the Claimant's requirements Mr Cumbers states that the average cost of such properties is some £360,000 and that the likely cost of extending and adapting such a property would be about £330,000.
Dr Rosenbloom considers that the Claimant's life expectancy is only to the age of 21. Thus the multiplier claimed for future losses, if those are to be calculated on the basis of a lump sum, is 13.22 at 2 1/2 %. But Dr Rosenbloom also states that the use of the average figure he mentions for a child such as the Claimant is likely to either under or over-estimate his actual survival to a significant degree. For that reason those advising the Claimant consider it appropriate that so far as possible damages for future loss should be paid by way of a periodical payments order ("PPO") so as to avoid to the greatest possible degree the risk of under or over compensation. In the schedule of loss, the claim is made for damages for future care, case management, occupational therapy, speech and language therapy, deputyship costs and loss of earnings to be awarded by way of PPO, but it is submitted that it is arguable that this should also include other recurring items of future loss such as physiotherapy, holidays and recurring items of equipment.
THE LEGAL FRAMEWORK
The applicable law is not in dispute. CPR Part 25.6 makes provision for applications for interim payment orders, and CPR Part 25.7 specifies the conditions to be satisfied and the matters to be taken into account. The Claimant has obtained judgment and so satisfies one necessary condition. CPR Part 25.7(4) provides that "the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment".
The approach to be adopted by the court is set out by the Court of Appeal in Eeles v Cobham Hire Services Limited [2009] EWCA Civ 204; [2010] 1 WLR 409 at paras 43 to 45 as follows:
43."The judge's first task is to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both. However, we consider that the practice of awarding accommodation costs (including future running costs) as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis. Save in the circumstances discussed below, the interim payment will be a reasonable proportion of that assessment. A reasonable proportion may well be a high proportion, provided that the assessment has been conservative. The objective is not to keep the claimant out of his money but to avoid any risk of over-payment.
44. For this part of the process, the judge need have no regard as to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection.
45. We turn to the circumstances in which the judge will be entitled to include in his assessment of the likely amount of the final judgment additional elements of future loss. That can be done when the judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone. We endorse the approach of Stanley Burnton J in Braithwaite. Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested. For example, where the request is for money to buy a house, he must be satisfied that there is a real need for accommodation now (as opposed to after the trial) and that the amount of money requested is reasonable. He does not need to decide whether the particular house proposed is suitable; that is a matter for the Court of Protection. But the judge must not make an interim payment order without first deciding whether expenditure of approximately the amount he proposes to award is reasonably necessary. If the judge is satisfied of that, to a high degree of confidence, then he will be justified in predicting that the trial judge would take that course and he will be justified in assessing the likely amount of the final award at such a level as will permit the making of the necessary interim award. "
So much is agreed. But there is a major issue of principle raised by Mr Spencer. That arises in relation to Roberts v Johnstone [1989] 1 QB 878. The law is conveniently summarised in McGregor on Damages 18 th edition paras 35–206 to 35–211 which read as follows (omitting references):
"35–206 In 1973 George v Pinnock established that a severely disabled claimant could claim for the additional costs of providing special accommodation for him to live in … over the cost of his existing living accommodation which was now wholly unsuitable for his injured condition… Since this time successful claims of this nature have become very familiar; illustrative from the reports are Moriarty v McCarthy and Roberts v. Johnstone. Sometimes a home is bought which may or may not require adaptation for the claimant, sometimes a home is built suitable for his needs and sometimes the existing home is adapted to his needs.
35–207 The amount awarded has never been the difference between the value of the new or adapted accommodation over the value of the existing home in its existing state but rather the interest upon that difference over the period that the new or adapted accommodation will be needed, generally the claimant's lifetime. To allow the full cost of the accommodation acquired over the proceeds of the existing accommodation disposed of or, as the case may be, the full value of the adapted accommodation over its value before adaptation, would leave the extra value in the hands of the claimant, or of his estate when it is no longer required for them. The full cost is recoverable only of any adaptations of the accommodation, required by the claimant's condition, to the extent that these do not increase...
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