D's Parent And Guardian (ap) V. Greater Glasgow Health Board
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 99 |
| Date | 16 June 2011 |
| Docket Number | A3160/02 |
| Court | Court of Session |
| Published date | 16 June 2011 |
OUTER HOUSE, COURT OF SESSION
[2011] CSOH 99
A3160/02
OPINION OF LORD STEWART
in the cause
D’s PARENT AND GUARDIAN (AP)
Pursuer;
against
GREATER GLASGOW HEALTH
BOARD
Defenders:
________________
Pursuer: Maguire QC, L. Henderson; bto
Defenders: Stephenson QC, F Lake; NHS Scotland Central Leg al Office
16 June 2011
[1] This medical negligence action called for Proof on Tuesday 9 November 2010.
Liability had been admitted. An interim award had been made in 2003 [D’s Parent
and Guardian v Argyll and Clyde Acute Hospitals NHS Trust 2003 SLT 511]. (The
liabilities of the previous defenders have been transferred to the present defenders.)
The proof, restricted to quantum, was set down for nine weeks. The sum sued for was
£23,000,000.
[2] At 12.30 on the second day, 10 November, senior counsel for the pursuer
made a motion, unopposed, to adjourn for two days to discuss settlement. I granted
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the motion. The case called again on Friday 12 November and was further adjourned
until Tuesday 16 November. On Tuesday 16 November, on joint motion, the proof
was discharged. The case was continued by Order and then again on two further
occasions until 3 February 2011 when I pronounced decree in terms of a settlement
agreed by Joint Minute.
[3] Counsel invited me to issue an Opinion about the settlement so as to record
and publicise its elements. I am happy to do this because the settlement represents
new thinking about the resolution of certain catastrophic injury cases in Scotland.
Counsel and solicitors are to be complimented on the professionalism which they
have shown in achieving this outcome.
[4] The outcome is a settlement that includes periodical payments for the
claimant’s lifetime. With only one exception that I was told of, in 2002, Scottish
medical negligence cases of this kind have been settled on a lump sum basis. Judicial
awards of course have to be made on a lump sum basis. This is notwithstanding the
fact that the limitations of, not to say objections to, lump sum compensation in
catastrophic injury cases have been appreciated for many years.
[5] I am grateful to Ms Maguire QC, senior counsel for the pursuer, and to
Mr Stephenson QC, senior counsel for the defenders, for their informative oral
submissions. I am grateful to Ms Maguire QC for providing me with a Note of
Submissions setting out the legal background, the issues surrounding the settlement
and the outline terms of agreement. I understand that the Note has been read over by
Mr Stephenson QC. The following summary draws substantially on the Note of
Submissions and includes references to cases and other materials subsequently
provided by counsel in answer to my requests for clarification.
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Catastrophic neurological injury
[6] The claimant is a boy, aged ten at the date of the proof. He suffered
catastrophic neurological trauma at birth. During delivery assisted by Keilland’s
forceps there was a compression-torsion injury of his spinal cord at the highest level,
C1/C2.
[7] The claimant’s brain was spared: but he is paralysed from the head down. He
cannot breathe spontaneously. He requires ventilatory support with 24-hour care and
supervision. Care costs are easily the biggest head of claim. The cost of 24-hour care
for someone with the claimant’s needs is, at present values, hundreds of thousands of
pounds a year for life. Life expectancy is therefore central to the quantification of
damages.
The lump sum problem
[8] Forecasting life-expectancy is currently the main challenge in resolving peri-
natal and early-life catastrophic injury cases. Typically the claimant’s and defenders’
experts are years apart, perhaps ten years apart or even more. These differences
translated into lump sums can amount to millions of pounds.
[9] The only reasonable certainty about forecasts of life expectancy is that they
are bound to be wrong [Lim Poh Choo v Camden and Islington Health Authority
[1980] AC 174 at 182—183 per Lord Scarman]. Consequently, lump sum awards are
almost inevitably going to be too little or too much: either the patient outlives the
award and is left without care; or the patient pre-deceases and the family receives a
windfall, probably at taxpayers’ expense in medical cases [Thompstone v Tameside
and Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB) (23 Nov 2006) at
§§ 14–28].
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