Ben Harman (A child proceeding by his Mother and Litigation Friend Joanne Harman) v East Kent Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Turner |
| Judgment Date | 11 June 2015 |
| Neutral Citation | [2015] EWHC 1662 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/13/0448 |
| Date | 11 June 2015 |
[2015] EWHC 1662 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: TLQ/13/0448
Mr Michael Mylonas QC (instructed by Irwin Mitchell) for the Claimant
Mr John Whitting QC (instructed by Clyde & Co LLP) for the Defendant
Hearing dates: 28 and 29 th April 2015
INTRODUCTION
The claimant in this case is Ben Harman. He was born on 7 April 2002. Those responsible for his care at the defendant's hospital negligently failed to diagnose his condition and it was nearly three days before blood sugar measurements were taken. They were found to be catastrophically low. Dextrose was administered but not before Ben had suffered grave injury. However, when he was discharged his parents were told nothing about the risk that his low blood sugar levels may have caused lasting damage.
As Ben grew up, his lack of developmental progress became a source of increasing concern to his parents. He was persistently and significantly failing to reach his expected milestones. However, it was not until 2006 that Mr and Mrs Harman discovered the cause of Ben's difficulties. They applied for a "blue badge" parking ticket and Ben's diagnosis was only revealed incidentally when they asked for medical evidence in support of the application.
A letter of claim was served in August 2011 and proceedings commenced thereafter. Liability was disputed on the issue of causation. Eventually, however, the defendant admitted liability in July 2013.
It has not been possible for the parties to agree all aspects of quantum and those that remain in dispute now fall to be adjudicated upon by this court.
BEN'S CONDITION
Ben suffers from severe autism and significant cognitive impairment. His intellectual ability is very seriously impaired. He is doubly incontinent. He has the vocal communication skills of a six month old baby and his levels of social awareness are only a little higher. Thus he cannot talk and he struggles meaningfully to relate to others. His mobility skills are, however, equivalent to those of a four year old. This means that he is able to run about and engage physically with his environment but he has no awareness of danger to himself or the impact of his behaviour on others. He is prone to having unpredictable tantrums and can lash out physically while shrieking at the top of his voice. There is a real and continuing risk of injury to himself and to others. As he grows older and physically stronger he presents an increasing challenge to those responsible for his care.
I have seen a DVD recording a day in Ben's life. What it portrays is entirely consistent with the descriptions of Ben's behavioural presentation which are to be found in the various witness statements and expert reports.
CARING FOR BEN
Little imagination is required to appreciate that Ben requires a very high level of care indeed. There remain, however, very serious issues between the parties as to the form in which that care ought to be provided to him in the future. I propose to deal with each of these issues in turn.
PRIOR'S COURT
For many years, Ben attended Maplewood School and lived at home. There is now no dispute that Maplewood was unable satisfactorily to provide for Ben's needs. An obviously more suitable regime was available at Prior's Court which provides specialist services for those suffering from severe autism. Ben's parents, however, faced a long and uphill struggle to persuade the Local Education Authority ("LEA") to fund the placement.
It was not until September 2014 that the LEA finally relented and agreed to pay but, by this time, liability in this claim had been admitted and Ben had already started at Prior's Court in the preceding December under private funding. This was not a day too soon. Ben's parents were at the end of their tether, exhausted by the physical and emotional challenges of looking after him. Ben has two brothers, one older and one younger. Time which would otherwise have been spent with them was being heavily diverted into attending to Ben's needs.
Despite the availability of a 52 week placement at Prior's Court, Ben's parents elected for a 44 week package which enabled him to continue to spend time at home. As well as the holidays which he spent at home Ben was only at home for 8 weeks a year. In July 2014, the family moved to a large rented house in Marlow which is sufficiently capacious adequately to accommodate Ben and his carers. The lease on this property expires in a little over a year's time. During this period, the family hope to be able to buy and adapt a suitable property for the long term.
At Prior's Court Ben has made gratifying progress in, for example, feeding and toileting. He has only now started to hug his mother. Last October, the family went on their first foreign holiday for ten years. At present, Ben comes home every other weekend but his parents have expressed the hope that he will be able to see more of them in future.
The present plan is for Ben to stay at Prior's Court until he is 25 years old. From the age of 19 it is expected that he will benefit from young adult provision there.
The LEA are presently funding Ben's placement at Prior's Court and, subject to the outcome of this claim, would probably continue to do so until he leaves at the age of 25. Against this background, the defendant contends that it should not be required to pay because Ben will suffer no loss.
Each side relied upon the reports and oral evidence of an educational psychologist. They were Mr Reid for Ben and Mr Baldwin for the defendant. They agree in their joint statement that 'in view of the appropriateness of Prior's Court, his continued placement there should be guaranteed, subject to review.'
After Ben has reached the age of nineteen the experts were agreed that he will have the benefit of an Education, Health and Care Plan ("EHC plan") in the same, or similar, terms to the existing statement. It is not suggested that his needs would vary significantly in the meantime or that the responsibilities or duties of the local authority would materially alter. Although provision is not guaranteed, the evidence suggests that there is only a low probability that an appeal would have to be launched to challenge a detrimentally unsuitable EHC plan. In the circumstances of this case, the experts were confident that even if such an appeal were to become necessary it would be successful. The defendant has therefore included in the agreed lump sum settlement a figure to cover the cost of launching any such appeal.
The defendant contends on this basis that to all intents and purposes the court can be confident that the LEA will pay the Prior's Court fees until Ben reaches the age of 25 and that this is a case in which there is not a mere future potential entitlement but a fait accompli.
In Sowden v Lodge [2004] EWCA Civ 1370, Lord Justice Pill observed, at paragraph 41:
"In general terms, the approach is to compare what a claimant can reasonably require with what a local authority, having regard to uncertainties which almost inevitably are present, are likely to provide in the discharge of their duty under Section 21. If the second falls significantly short of the first, as Owen J found in Crookdake it did, the tortfeasor must pay, subject to the argument raised in both cases that Section 21 provision augmented by contribution from the tortfeasor meets the reasonable requirements. If it is the statutory provision which meets the claimant's reasonable requirements, as assessed by the judge, the tortfeasor does not have to pay for a different regime. I accept that in making the comparison a court may have regard to the power to compel a local authority to perform its duties."
In Crofton v NHSLA [2007] EWCA Civ 71, the Court found, in so far as is relevant to this issue:
"87. To summarise, the judge was right to hold that the Council could and would make direct payments to meet the claimant's care needs despite the award of damages, and that these payments should be taken into account in the assessment of damages.
88. Once the judge decided that the Council would make such direct payments, it seems to us that he was bound to hold that they should be taken into account in the assessment of damages…
91. It is trite law that a claimant is entitled to recover the full extent of his loss. That involves asking what the claimant would have received but for the event which gave rise to the claim and which he can no longer get; and what he has received and will receive as a result of the event which he would not have received but for the event. The question then arises whether the latter sums must be deducted from the former in assessing the damages: Parry v Cleaver [1970] AC 1, 13. In Hodgson v Trapp [1989] 1 AC 807, 891 Lord Bridge said that it was "elementary" that if in consequence of the injuries he has sustained a claimant enjoys receipts to which he would not otherwise have been entitled, then prima facie those receipts are to be set against the aggregate of his loss and expenses in arriving at the measure of damages. To this basic rule there are certain well established exceptions, none of which is of application in the present case.
92. In principle, payments by third parties which a claimant would not have received but for his injuries have to be taken into account in carrying out the assessment of damages unless they come within one of the established exceptions. It is not suggested that direct payments made by a local authority in the exercise of its statutory functions to make care arrangements under section 29 NAA...
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