James Robshaw (a child by his mother and Litigation Friend Suzanne Adams) v United Lincolnshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 923 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/13/0433 |
| Date | 01 April 2015 |
[2015] EWHC 923 (QB)
Mr Justice Foskett
Case No: TLQ/13/0433
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Susan Rodway QC and William Latimer-Sayer (instructed by Shoosmiths LLP) for the Claimant
Neil Block QC and Nicola Greaney (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 13 – 20, 22 & 23, 26 – 28 January 2015
Further written submissions based upon initial draft judgment sent to parties on 18 March 2015: 23–31 March
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
The Claimant, James Robshaw, was born on 9 December 2002. He is currently very nearly 12 years and 4 months of age. It is not disputed that his birth was negligently mishandled at Lincoln County Hospital, Lincolnshire, with the result that he sustained significant brain damage leading to serious disabilities.
Liability for negligence has been admitted and judgment for damages to be assessed was entered on 31 January 2013.
The hearing of the assessment of damages took place before me over 11 days. At the commencement of the trial, whilst there had been agreement on certain issues, there was a very significant gap between the claim advanced on James' behalf and the valuation put upon it by the Defendant. During the trial the gap narrowed, but not to the extent that the whole claim was settled. As it is, I have had to consider important issues such as life expectancy, accommodation (including whether the property already acquired should be demolished and something put in its place or whether it should be extended) and some aspects of the care regime as well as some, frankly, trivial issues such as whether there should be a cord operated curtain track in James' new home.
Agreement had been reached before the trial, subject to the approval of the court, on the appropriate award of damages for pain, suffering and loss of amenity in the sum of £290,000. That indicates the severity of the brain damage. There is no doubt that James' disabilities are severe and that he has complex needs. The means by which those needs are to be met lie at the heart of the differences between the parties. There is, unfortunately, a material dispute as to his life expectancy, the Defendant's case being that James will live to age 53, the case advanced on his behalf being that he will live to age 70–71.
Recorded in the Appendix to this judgment are those areas where agreement had either been reached before the trial or where agreement was reached during the trial.
I should say that the predictions of the parties about the length of the trial were somewhat pessimistic although those predictions were made before the gap between the parties narrowed and certain events occurred that shortened the trial. James' advisers thought the trial might last 20 days and the Defendant's advisers thought it might be nearer 15 days. In fact, as I have indicated, the trial lasted 11 days, of which 10 were devoted to the evidence, lay and expert, and one day to final submissions. The initial pessimism may have been borne of the knowledge that there were 91 files of documents copied for the hearing and so many potential areas of disagreement at the outset of the trial to which apparently James' team were put to proof. I merely observe that it is unfortunate that such substantial time estimates had to be given for a "damages only" hearing because, inevitably, accommodating such a lengthy hearing in the list is less easy than one of more manageable proportions. Accommodating the availability of all witnesses is also problematic in such circumstances.
As it is, the fact that so little has been agreed has led to a very lengthy judgment.
As it was, the Defendant sought an adjournment of the trial at its outset because the expert paediatric neurologist who reported for James, Dr Colin Ferrie, was unfit to attend the trial and the Defendant submitted that it was unfair that it should be deprived of the opportunity to cross-examine Dr Ferrie. The James' advisers contested the need for the adjournment. I rejected that application and the trial started on the following day. If Dr Ferrie had been present, the trial might have been extended by one day or thereabouts. His absence has not rendered resolution of the life expectancy issue (see paragraphs 33 – 137 below) impossible (though it has made it more difficult) nor has it caused the trial to be unfair from the Defendant's perspective. At the end of the day, the issue of life expectancy is to be determined by the court, not by the experts, on the basis of all the evidence received.
The form of the award
It is accepted by both parties that the award of damages should be paid partly by way of a lump sum and partly as periodical payments. In particular, the award for future care and case management should, it is agreed, be paid by way of annual periodical payments and that any periodical payments should start on 15 December 2015 (which is the usual date for payments by the NHSLA). It is further agreed that there will need to be a pro rata payment in respect of any heads of loss awarded by way of a periodical payments to cover the period from the date of trial (to which date past losses have been calculated) and 14 December 2015.
The extent to which other heads of loss might appropriately be dealt with by way of periodical payments will have to await the outcome of my assessment of the multiplicands for the other continuing losses in the light of James' needs. James will require sufficient free capital to meet his accommodation needs, to pay for items of equipment that will need to be changed periodically (e.g. wheelchairs, adapted vehicles and eye-gaze equipment) and to provide an adequate contingency fund. The parties have invited me to hand down a judgment determining the level of James' needs and the appropriate multiplicands after which submissions can made on the appropriate form of award in the light of independent financial advice which will then be commissioned. I have been content to approach the case on this basis. The other factor that the parties will need to know before being able to advance this aspect of the case is my conclusion on the life expectancy issue because the appropriate multiplier (or multipliers) will depend upon that conclusion. This judgment is, therefore, the judgment that contains all my conclusions on the disputed items. The final judgment giving effect to these conclusions will be handed down in due course.
This is a case where substantial interim payments have been made totalling £1,718,487.60 (inclusive of repayment to the CRU of £18,487.60). This has enabled, within the limits of the present rented family accommodation (which is agreed to be inadequate for James' needs), the implementation of an interim care and other support regime over the 3 or 4 years or so prior to the trial. I will say more about that in due course.
I can say that where agreement has been reached by the parties on any issue I am able to give my approval to the agreement.
James' disabilities
Before turning to his family situation I should set out briefly the nature of James' disabilities. In view of the dispute there is about his capacity to improve his function in the future, I will for present purposes merely record the general nature of his disability.
He sustained a hypoxic ischaemic encephalopathy during his unnecessarily prolonged birth and was subsequently diagnosed with motor developmental delay, cerebral palsy and learning difficulties. His cerebral palsy affects all four limbs (and he is thus described as quadriplegic or tetraplegic) and is dyskinetic in type, with prominent dystonia and athetosis, characterised by frequent involuntary writhing movements. James attended the first day of the trial and I was able to observe for myself that which is also shown on the videos prepared for the trial and described by the witnesses, namely, frequent jerky arm and hand movements, in particular. It should, perhaps, be observed that this attendance at court would have been either an exciting or anxious time for James and it is possible that I saw rather more movements of this nature than in a calmer setting. However, for reasons that will emerge, this is an ongoing feature of his presentation that does add complexity to the picture.
He does possess a high level of retained intellect and insight, but equally has significant communication problems. At present he communicates using an eye-gaze augmentative and alternative communication (AAC) system which I will describe in greater detail later (see paragraph 204). It is not difficult to appreciate and sympathise with the frustrations to which this particular combination of disabilities must give rise.
Fortunately, James is continent and ordinarily he can and does indicate when he wants to go to the toilet. The process is not without its complications however.
James wins the highest praise from everyone he meets. Mrs Julia Ho (see paragraph 225 below) described him as "a very active, quite exceptional, young man." That seems to be borne out from all other sources.
The family setting and the Claimant's mother
James' mother (who has been referred to throughout as 'Mrs Adams') was born in 1966 and is now aged 48. She was first married in 1988 to Paul Adams who was in the RAF. They separated in January 1996 and divorced later that year. Subsequently she met James' father, Graham Robshaw, in 2001. They had not lived together permanently prior...
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