Iqbal v Whipps Cross University NHS Trust
| Jurisdiction | England & Wales |
| Judge | Sir Rodger Bell |
| Judgment Date | 08 December 2006 |
| Neutral Citation | [2006] EWHC 3111 (QB) |
| Docket Number | Case No: HQ03X03492 |
| Court | Queen's Bench Division |
| Date | 08 December 2006 |
[2006] EWHC 3111 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
SIR RODGER BELL
Case No: HQ03X03492
Mr Simon Taylor QC and Mr William Latimer-Sayer (instructed by Parlett Kent) for the Claimant
Mr Martin Spencer QC (instructed by Hempsons) for the Defendant
Hearing dates: 9-16 October 2006
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.
Introduction.
This is a judgment on the amount of damages to be awarded to the claimant, Khazar, for brain damage resulting in dystonic tetraplegic cerebral palsy and cognitive disability suffered around the time of his birth in the defendant's hospital on 4 March 1997. The defendant admits liability for Khazar's injuries, and judgment for damages to be assessed was entered by consent on 13 November 2003.
A number of heads of damage have been agreed by the parties, subject to the court's approval which I have no hesitation in giving. There is an issue as to whether some of the damages to be awarded for future losses should be by periodical payments rather than by traditional lump sum or by a combination of the two. The amounts agreed are as follows:
Pain, suffering and loss of amenity, and interest £210,000
Past loss, and interest £360,000
Future loss of earnings £260,000 or £18,880 p.a.
(from the age of 18)
Aids and equipment £150,000 or £40,000
and £5,000p.a.
IT equipment£175,000 or £50,000
and £5,723 p.a.
Treatment and therapies £65,000 or £2,976 p.a.
Travel and transport £100,000 or £12,640
and £4,000 p.a.
Holiday costs£40,000 or £2,872
and £1,700 p.a.
Therapeutic leisure activities£2,344
Court of Protection and receivership£180,000 or £13,000
and £7,647 p.a.
Miscellaneous £40,000 or £2,872
and £1,700 p.a.
The defendant provided an indemnity against the possible cost of appealing against any future, unacceptable Statement of Educational Needs. The indemnity is in agreed terms which are acceptable to the court.
Apart from the question of lump sum or periodical payments, there are many issues relating to the cost of future care over successive phases of Khazar's life as it is presently foreseen. The expert witnesses have recommended different care packages and suggested different rates for paid care, there is a dispute as to whether Khazar will ever attend school as a boarder, and there is an issue as to whether he will benefit from free local authority care. There are some issues relating to the cost of accommodation. There is a dispute whether Khazar is entitled to claim for the "lost years" of earnings as a result of his reduced life expectancy and, if so, its value.
The background to the issues in the form of Khazar's disabilities and his family setting is essentially common ground. The combination of physical disability and learning difficulty is devastating. His cerebral palsy means that his movements are characterised by involuntary fluctuations of muscle tone. He is floppy at rest but his tone becomes stiffened when voluntary movements are attempted. He suffers from abnormal, curved, "windswept" posture. He will never walk or stand unaided, and he has no independent mobility apart from some ability to roll from side to side. Dr Rosenbloom, paediatric neurologist, expressed the unchallenged view that Khazar's motor abilities have plateaued, perhaps for the last two years. Khazar is wholly dependent on 24-hour care for all activities of daily life. He is doubly incontinent, and he is fed through a gastrostomy tube, save for a little oral feeding for texture and taste. All this is permanent. There will be no major functional improvement. He has epilepsy and has suffered convulsions, although these will probably continue to be reasonably controlled and occasional. He has permanent learning difficulties, probably towards the lower end of moderate, but with considerable variation in skills. The exact extent of his cognitive disability is difficult to judge because of his physical difficulties and his limited functional speech, but Mr Albert Reid and Dr Richard Lansdown, psychologists, do not expect a significant improvement in intellectual, cognitive functioning. There may be plateauing now of his rate of learning. There is nothing wrong with Khazar's vision and hearing and he is able to say several single words but his speech is severely dysarthric. He tends to communicate by eye pointing and using signs, with a sign book at school. Those who know him well, most obviously his parents, but also his regular carers, understand best and most readily what he means. He has some ability to reach out and operate switches and controls. He is demanding of attention, but in Dr Rosenbloom's view his personality is one area where he will continue to mature.
Dr Rosenbloom and Dr Thomas, a fellow paediatric neurologist, have agreed on life expectancy to the age of forty-one, a further thirty-one years and five months at trial.
Khazar's mother, Mrs Iqbal, is thirty-five. She comes from the Philippines. Mr Iqbal is forty-one. He comes from Pakistan. A back injury has kept him from work and heavy lifting for some years. They both come from cultures where close family connections are important. For many years after Khazar's birth they lived with Khazar in a small flat in Hackney, and looked after him themselves. The stress and weariness caused by Khazar's disabilities, and an understandable anxiety about a possible repetition of the events surrounding his birth, stood in the way of another child.
In August 2004, a four bedroom bungalow in Epsom, Surrey, was bought with a substantial interim payment. It was already partly converted for a previous disabled owner but needed further adaptations specific to Khazar's needs. In December 2004, a regime of carers was instituted.
In April 2005, after a successful appeal against the Local Education Authority's decision about school placement, Khazar began to attend Ingfield Manor School, Billingshurst, West Sussex, which uses the principles of conductive education which his parents admire. They had moved to South London with day attendance at that school in mind. It is 45 to 50 minutes drive according to Mr Iqbal, although there were also mentions of travelling an hour each way.
In September 2006, Mrs Iqbal bore a healthy baby boy. She would like one more child. Although there are issues as to just how much continuing care Mr and Mrs Iqbal can reasonably be expected to give to Khazar, it is common ground that he will continue to live under the same roof as his parents and his brother and any further siblings indefinitely.
But for the defendant's negligence, Khazar's intellectual functioning, and his physical abilities, would probably have been more or less within the average range, although Mr Reid and Dr Lansdown differ about just how far he would have gone with further education.
I will refer to other matters, so far as Khazar's disabilities and his family's wishes are concerned, as I consider the issues which remain despite the obvious and laudable efforts of those who represent the parties to reach agreement wherever possible.
Future Care
The most numerous and most costly issues at trial related to the likely cost of future care. It is common ground that Khazar will require the availability of a caring adult throughout each twenty-four hour period of his life and that the nature of the necessary care regimes will change as he grows older and as he reaches educational land marks and then leaves full-time education as an adult at an age when his parents would no longer have been responsible for his care, but for his disabilities. So far as day care is concerned, it is convenient and sensible to consider the care patterns from the age of 9.5, the beginning of the current school year in September 2006, and thereafter in bites by age at the beginning of the appropriate school or college year, as if he is precisely 9. 5 or 10. 5 or 12.5 etc. In fact he was 9 years and 7 months old when the trial began, and he is a little older still at the time of this judgment, but this was the approach suggested by Mr Simon Taylor QC, leading counsel for the claimant; I assume that where past or future losses were agreed they were taken to or from the date of trial, and the suggestion of Mr Martin Spencer QC that Khazar be taken to be 9, while even more convenient in some respects, and designed to be helpful, would distort the true position too much, in my view.
Night care will be subject to less variation than day care. Although Dr Rosenbloom and Dr Thomas deferred on detailed care needs to Mrs Maggie Sargent and Mrs Gillian Conradie, the care experts called for the claimant and the defendant respectively, they had previously agreed that Khazar will need his existing, waking night care for another year but that thereafter his needs are likely to be met by sleep-in night care. The parties remained loyal to this agreement so far as the first year is concerned, although some evidence indicated that sleep-in care might be sufficient now, and Mrs Conradie expressed the view, not shared by Mrs Sargent, that Mr and Mrs Iqbal will be able to provide any necessary, occasional assistance at night after the next three years.
Mr Taylor and Mr Latimer-Sayer, for Khazar, argued two matters of general principle so far as the assessment of damages for future care is concerned. They reminded the court that so far as is financially possible the claimant should be put back into the position as if the negligence had not occurred (the 100% principle): see, for example, Lord...
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