HS v Lancashire Teaching Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice William Davis,Mr Justice William Davis |
| Judgment Date | 15 May 2015 |
| Neutral Citation | [2015] EWHC 1376 (QB) |
| Docket Number | Case No: HQ13X05988 |
| Court | Queen's Bench Division |
| Date | 15 May 2015 |
[2015] EWHC 1376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice William Davis
Case No: HQ13X05988
Mr William Featherby QC and Mr David Kenny (instructed by Linder Myers) for the Claimant
Ms Margaret Bowron QC (instructed by Hempsons Solicitors) for the Defendant
Hearing dates: 20–22 April 2015
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.
This is a clinical negligence claim arising out of the post-birth management of the Claimant HS at the Defendant's hospital in Preston in October 2006. When HS was born she was suffering from a streptococcal infection. Negligent failure by the paediatricians with the neo-natal care of HS to recognise and to treat the infection led to the development of meningitis. As a result HS suffered catastrophic brain injury.
The Claimant sues by her mother and litigation friend JS. HS is now 8 years old. She will never have any capacity to manage her own affairs as an adult.
The action was commenced in September 2012. Liability was admitted in a letter from the Defendant's solicitors dated the 24 th September 2013. The hearing before me has been concerned purely with issues relating to recoverable damages. Various heads of claim were agreed in advance of the hearing. I shall deal with the application to approve the agreed sums at the conclusion of this judgment. I was required to determine various matters relating to future loss, the most significant issue being the appropriate measure of damages for the cost of future care.
The current condition of HS
HS is subject to three principal abnormalities. First, she has bilateral spastic cerebral palsy. This means that she has no independent mobility. She can move her body a little, she has some uncontrolled arm movements and she has a limited degree of sitting ability. Thus, she is entirely dependent on others for all aspects of daily living. HS is doubly incontinent. There is no prospect of any improvement in motor functions. It is highly likely that, notwithstanding proper physiotherapy, HS will develop significant contractures and deformities in the future.
Second, HS is profoundly retarded developmentally. She has profound cognitive impairment. She has no speech and very limited ability to interact with her environment. She functions at about the level of a one year old child but without the rapid developmental background of such a child. This will be the permanent position. She manifests serious behavioural problems. These have improved with the input of full time professional carers but the potential for them will remain. The management of them can be improved further with psychological intervention.
Third, HS's sight is very limited. She can recognise people with whom she is familiar. She will watch television though this is likely to be as much an aural stimulus as a visual engagement.
No improvement in HS's condition is expected. She is at risk of epilepsy but this will be controllable with medication. Her life expectancy has been substantially reduced. She is likely to survive until she is 49.
The position to date
HS lives at home with her mother, father and two younger siblings. Her mother is a registered nurse. She works at the same hospital where HS was born. Her father AS works as a machine operator. They were married in 2000 in India which is the country of their birth. JS came to the UK in 2002 and was joined by her husband in 2003. Both have worked throughout their time in this country. They are settled here. Their two other children are ES born in December 2010 and CS born in October 2012. They are normal healthy children.
Until 2014 HS's care was provided by her parents at the then family home. The family home was a three bed roomed house in Ribbleton, a suburb on the north eastern outskirts of Preston. Although some alterations were carried out by the local authority e.g. a lift giving access to the bedroom used by HS, the accommodation was quite unsuitable for the care of someone as disabled as HS. JS and AS only had limited assistance from outside carers i.e. one carer coming in for an hour and a half on weekdays before HS went to school and a carer providing assistance for a similar period when HS returned from school. They also had respite care for two hours on a Sunday morning. Otherwise, the very demanding care needs of HS were met entirely by her parents. They had two other very young children to care for and they had to maintain their working lives as best they could. Not surprisingly both found the situation hugely difficult. JS said that they were completely exhausted the whole time. AS's evidence was that he did not know how he and his wife survived with the very limited assistance they had. It is greatly to their credit that throughout this time they maintained the family home and provided HS with expert and loving care.
From March 2014 a much more comprehensive outside care regime was introduced, the funds for this now being available from interim payments. Two carers now are employed full time during the day i.e. mornings and evenings on school days and throughout the day at weekends and school holidays. A further carer covers the nights. In September 2014 the family moved to a larger home in Preston. This has been adapted to provide proper downstairs accommodation for HS and facilities for her carers. Again this has been funded from interim payments.
In early September 2014 HS underwent surgery to stabilise her left hip. She recovered relatively quickly from the operation. She was in a spica cast for about six weeks. The surgery has been successful. However, there is a significant risk that in the near future she will require stabilisation of the right hip.
The losses sustained to date have been agreed. I shall return to them at the conclusion of this judgment.
The issues in dispute
The matters on which my decision is required are as follows:
• The amount recoverable for future care. There are various aspects of future care which are in issue with closer agreement between the parties on some than on others.
• The amount recoverable for case management.
• The proper figure for loss of earnings.
• The sum recoverable to cover the additional cost of holidays caused by HS's disability.
• Whether the cost of a hydrotherapy pool at HS's home is recoverable.
I have established the principles to be applied in each instance. Having been informed of my conclusions via an initial draft judgment, the detailed calculations have been carried out by the parties. The resulting figures together with the agreed sums appear in the schedule annexed to this judgment.
Future care – issues of principle
I shall deal first with care during the day. There is an issue as to whether the division between day and night care should be 12: 12 or 14:10 i.e. when HS is an adult. That is a matter to which I shall have to return. (There is agreement that the division should be 12:12 until she reaches adulthood.) The significant dispute is as to the level of care recoverable until HS reaches the age of 19. Her case is that she should recover the cost of two full time carers throughout the day for the whole of that period. The Defendant's case is that until HS reaches the age of 11 the cost of only one full time carer will be recoverable. From that point until HS reaches the age of 19 the Defendant contends for one full time carer with a second carer for part of each day. Thereafter it is agreed that there will have to be two full time day carers.
In making her case HS relies first on the fact that the current deployment of carers is two full time carers during the day. This is the regime put in place by her parents as their preference. Second, it is argued that JS and AS have full time jobs and two other small children for whom they have to care and that the difficult and varied care needs of HS would place too great a burden on them even if they were to act only as a second carer. Third, both of them have suffered from carpal tunnel syndrome. Although it has been treated, it is the kind of muscular skeletal condition which would be liable to be worsened by manual handling as involved in the care of HS. Fourth, although a second carer might not be occupied the whole of the time with the care of HS, events requiring a second carer are completely unpredictable and could occur at any time of the day. When they do occur, the second carer has to be on hand there and then. There will be many occasions when neither JS nor AS is available. Finally, reliance is placed on the evidence of JS and AS. Each has described the burden of caring for HS until the care regime was introduced in March 2014. Both have said that they do not want to return to the position of being responsible for HS's hands on care even as the second carer being called on from time to time. They want to be able to work full time and to have a proper opportunity to care for the younger children.
Mr Featherby Q.C. on behalf of HS relied on the judgments of Lloyd Jones J (as he then was) in A v B NHS Trust [2006] EWHC 1178 and H.H. Judge Mackie Q.C. in Wakeling v McDonagh [2007] EWHC 1201 in support of the proposition that HS is entitled to recover what is reasonably necessary for her proper care and that, if that means the provision of care is not always utilised to full capacity, this is something the Defendant must bear. He invited the acceptance of two propositions: a Claimant is entitled to the damages required to meet that which is reasonably necessary; a...
To continue reading
Request your trial
-
JR (a Protected Party by his Mother and Litigation Friend JR) v Sheffield Teaching Hospitals NHS Foundation Trust
...pool. But this is a case in which I can and should take an approach similar to that which I took in HS v Lancashire Teaching Hospitals [2015] EWHC 1376 QB, namely make provision for the cost of visiting a local hydrotherapy pool (of which there are several) on a regular basis. The evidence ......
-
Ax v A, B and C
...v. Pontypridd Roofing Ltd., [2001] EWCA Civ 1657; [2002] P.I.Q.R. Q5, applied. (11) HS v. Lancashire Teaching Hospitals NHS Trust, [2015] EWHC 1376 (QB), referred to. (12) Heil v. Rankin, [2001] Q.B. 272; [2000] 2 W.L.R. 1173; [2000] 3 All E.R. 138, referred to. (13) Housecroft v. Burnett, ......