Hugo Timothy Cassel and Others (Appellant v Riverside Health Authority and Another (Appellant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE FARQUHARSON,LORD JUSTICE PURCHAS |
| Judgment Date | 18 March 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0318-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0298 |
| Date | 18 March 1992 |
[1992] EWCA Civ J0318-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ROSE J.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph Gibson
Lord Justice Farquharson
92/0298
MR. ADRIAN WHITFIELD Q.C. and MR. J. GIBSON-WATT (instructed by Messrs Merriman White, Guildford) appeared on behalf of the Appellant (Defendant).
MR. ANTHONY SCRIVENER Q.C. and MR. ROBIN DE WILDE (instructed by Messrs Selwood Leathers Hooper, Brighton) appeared on behalf of the Respondent (Plaintiff).
This is an appeal by the defendant, the Hammersmith and Fulham Health Authority, from the decision of Rose J. on 21st December 1990 as to the quantum of damages in a medical negligence case. The total award was £1,058,510 together with appropriate interest and an additional sum of £47,700 for receiver's fees and a further sum in respect of Court of Protection fees.
The award of damages was to Hugo Cassel who was born on 3rd September 1982. Shortly before and during his birth he was severely asphyxiated. He suffered cerebral palsy, causing grave and irreparable brain damage. The defendant health authority, with the court's approval, submitted to judgment on liability in favour of the plaintiff for 90% of damages to be assessed.
Rose J. set out his findings as to the nature and extent of the present and likely future disabilities of the plaintiff resulting from the negligence of the health authority. I take the following account from his judgment, omitting matters not relevant to this appeal.
There is an enormous loss of amenity and the plaintiff has suffered and will continue to suffer considerably, particularly in terms of frustration, for he has insight, although limited, to his predicament. He is a boy of normal build for his age. He is mobile. He can walk reasonably well, though not always in a straight line, and runs for a few somewhat ungainly steps with a floppy movement of the arms. With help in mounting and dismounting he can ride a pony at the walk and, if led, at the trot. He loves water, can do a dog paddle and will probably be able to swim in the near future. He enjoys a climbing frame. His hearing is reasonably good. The vision in his right eye is very poor indeed. Although the vision in his left eye is good, he appears to have serious difficulty in remembering and interpreting what he sees, though he has no real difficulty in getting about in familiar surroundings.
He has to be supervised at the table because otherwise clumsiness leads to him knocking over crockery and glasses.
He has some impairment of fine movements in the fingers, but he can dress and undress himself with help and supervision. His speech is limited to a very small number of words and one or two short phrases. He is doubly incontinent and wears a nappy at night, though his condition in this respect is slowly improving. His principal handicap is his mental condition by reason of which he needs constant skilled supervision. His behaviour, educational skills and comprehension are, at best, those of a two to three year old. He is impulsive, hyperactive and easily distracted and he does not appreciate dangers: for example from fire and traffic. He has tantrums which can sometimes, particularly at school, be anticipated and headed off, but are sometimes unpredictable.
He goes by taxi to a special school from about 8.30 in the morning to 3.30 in the afternoon. He goes to bed about 8.30 p.m. but has to be taken to the lavatory between 11 and midnight. On three or four nights a week, usually between three and four a.m., he disturbs not only his sister, whose bedroom he usually shares, but his parents and/or the carer, who helps to look after him, by hyperactivity.
As he grows bigger he is becoming increasingly difficult to control, divert and entertain and this has been compounded by the lack, until very recently, of adequate carers.
In the light of all the evidence it is a proper inference that the plaintiff's life expectancy, bearing in mind his present fitness and the close care which he will receive, is reduced below normal to only a very slight extent. He is likely to live until 65 or more.
So far as the future is concerned the doctors agree that any improvement in his skills is likely to be slight. He will never be able to live independently, marry or work. With optimum help he may be able, in time, to function as a four to five year old. As to hyperactivity and behavioural problems, all agree that the plaintiff will not improve significantly in the short or medium term. Professor Ross hopes, without promising, that by his mid-teens the plaintiff's sleep patterns will improve and he will become more biddable. Doctor Rosenbloom and Professor Corbel say that, provided he receives constant help from now on, he will tend to improve in 10, 15 or 20 years time and Dr. Rosenbloom expects some improvement in the sleep patterns by about the age of 15. All three doctors stress separately and unanimously the importance of continuity in consistency in the care of the plaintiff in relation to the acquisition of new skills and the retention of old ones.
The award of damages made by the learned judge, under several heads, was as follows:
SUMMARY OF AWARD
| Gross award £ | Net award (90) % £ | One-off costs £ | Not specifically allocated £ | Recurring Costs Phase 1 £pa | Phase 2 £pa | |
| General damages | 110,000 > | 99,000: | 99,000 | |||
| Past care | 95,751 > | 86,176 | ||||
| Future care | 508,564 > | 457,708 | 21,088 | 28,528 | ||
| Future Accommodation | 45,500 > | 40,950 | ||||
| Future miscellaneous: | ||||||
| - One-off appliances | 2,702 > | 2,432: | 2,432 | |||
| - Medical | 5,000 > | 4,500: | 250 | 250 | ||
| - Extra purchases | 13,014 > | 11,712: | 651 | 651 | ||
| - Educational toys | 2,625 > | 2,362: | 315 | - | ||
| - Other | 42,966 > | 38,670: | 2,148 | 2,148 | ||
| Future earnings | 350,000 > | 315,000: | 315,000 | |||
| 1,176,122 > | 1,058.510: | |||||
| Receiver | 47,700: | 2,650 | 2,650 | |||
| Court of Protection | 32,700: | 1,817 | 1,817 | |||
| Interest | 53,080: | 53,080 | ||||
| 28,919 | 36,044 | |||||
| x 7.5 = | x 10.5= | |||||
| TOTAL AWARD | 1,191,990 | 182,638 | 414,000 | 216,892 | 378,460 |
The grounds of appeal are directed to only four matters: (i) the award of £350,000 for loss of future earnings; (ii) the award of £32,500 for the cost of a swimming pool under the heading of future accommodation; (iii) part of the cost of sleeping attendance included in the item of future care; (iv) the award of £59,670 for the cost of a receiver to administer the damages and in respect of the cost of the Court of Protection, which the judge awarded in full instead of reducing that sum by 10% in accordance with the judgment on liability.
I will consider these four grounds in turn. There is a fifth ground of appeal, directed to the award of interest by the learned judge on the award of damages in respect of parental care before trial. It is acknowledged by the appellant that the point is not open for consideration by this court because of the decision in Roberts v. Johnston [1989] Q.B. 878. The point is thus reserved.
The loss of earnings
Mr. Whitfield submitted that the judge took too high an estimate of net future earnings, in the sum of £35,000 per annum, and too high a multiplier at 10 years purchase. Rose J. said that he found this the most difficult part of the case because of the many imponderables. I share his view. The plaintiff's case was that having regard to the education which he would have received, to the family history of effort and achievement, and to the probable nature and extent of his personality and intelligence if he had not been injured, the basis of the award should be on the earnings of a partner in a medium sized firm of city solicitors or accountants. On that basis, the loss, discounted for early receipt, and without regard to other contingencies, would be £323,000 in earnings and a further £78,000 as the value of a motor car and pension rights provided by the firm, a total of £401,000. The projected gross earnings in that calculation started at £16,000 per annum at age 24 and increased regularly thereafter to £100,000 per annum at age 55 at which level they remain to age 64.
The principal submission for the defendant before the judge was that the better guide for estimating loss of earnings was the national average for male non-manual workers, namely £14,491, increased by 50% to £19,671 in recognition of the plaintiff having better than average prospects: see Smith J. in Taylor v. Glass (23rd May 1979) and Fennel J. in Almond v. Leeds Western Health Authority [1990] 1 Med. L.R. 370. to that figure it was suggested that a multiplier of 10 might be applied on the basis that the plaintiff would start earning at 18, without going to university, or 8.5 on the basis that he would have gone to university.
Rose J. reviewed the evidence as to the heredity and environment of the plaintiff and found the omens to be propitious. The family pattern on both sides was one of effort and success. There was a good prospect that, had he wished to do so, he could have entered a profession, in particular the legal profession. There were also artistic and entrepreneurial genes in him. Rose J. said:
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