Joseph Massey (A Child by His Mother and Litigation Friend Janet Massey) v Tameside & Glossop Acute Services Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 23 February 2007 |
| Neutral Citation | [2007] EWHC 317 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ05X01800 |
| Date | 23 February 2007 |
[2007] EWHC 317 (QB)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Teare
Case No: HQ05X01800
John Grace QC and Ranald Davidson (instructed by Penningtons LLP) for the Claimant
David Balcombe QC (instructed by Hempsons) for the Defendant
Hearing dates: 23–24, 27–30 November 2006 and 1 December 2006, followed by the exchange of written submissions on 8 December 2006 and 10 January 2007
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.
MR.JUSTICE TEARE
The Claim
1. Joseph Massey was born on 3 December 1996 and is now 10 years old. As a result of negligent care by the Defendant during Joseph's birth he suffers from dyskinetic cerebral palsy with dystonia (fluctuating muscle tone). He is described as being “generally floppy” with poor postural control. He cannot sit, save when heavily supported. In addition, overt involuntary movements affect his head, face and all of his limbs (athetosis). He has poor oromotor function so that his ability to swallow and speak is very limited. He can say “mum”, “no” and “yes” but little else. He can only move by rolling. He cannot grasp objects but can attempt to reach out and bat them.
2. As a result of these physical disabilities, which are extreme even for someone suffering with his form of cerebral palsy, he is totally dependent upon others for all aspects of daily living. Most of his feeding is by gastrostomy as an overnight infusion. He is doubly incontinent. Joseph has an agreed life expectancy of about 45 years. He will remain very severely disabled. He is never going to be able to reach or grasp objects consistently successfully. His own production of speech is never going to be easily intelligible.
3. But happily, and remarkably (as it appears to a non-medic), he has normal understanding. A consultant psychologist has concluded that Joseph's intelligence is largely preserved. At his special school he is considered to be a bright boy who is quite animated and alert. He appears to have satisfactory hearing and only slightly impaired vision. He is considered to have a normal range of social interests. He is likely to develop a significant degree of insight and possibly a full insight into the nature and extent of his own disabilities.
4. According to his mother he is comfortable with, and prefers to be with, normal, able bodied people. She describes Joseph as a “normal boy trapped inside his body.” He himself wants to become a policeman.
5. His mother has developed an intuitive ability to understand his needs. He is able to communicate with her by the use of simple sign language or natural gesturing to indicate his needs. Joseph is now able to communicate with others by means of a Vanguard, an artificial computer-based voice which is operated by him, as best he can. I had the greatest pleasure exchanging a few words with him in Court by means of this remarkable device.
6. One can only admire Joseph's attempts to cope with his severe physical disabilities, his mother's devoted care of her son over the whole of the last 10 years and her determination that Joseph should be able to lead as normal a life as possible.
7. This action concerns the quantification of damages which the Defendant must pay Joseph. There are three categories of claim; pain suffering and loss of amenity, past loss (primarily the cost of past care) and future loss (primarily the cost of future care and loss of earnings). General damages for pain suffering and loss of amenity have been agreed in the sum of £200,000. Whilst some items of past loss and future loss have been agreed many have not. The major disputes concern the quantification of damages in respect of past and future care. The Court has been asked to assess a lump sum as damages but the question whether the Court's order should be for payment of a lump sum or periodical payments is to be left over for later resolution.
8. Unexpectedly the oral evidence lasted 7 days; the trial estimate had been about 3 days. It seems that it had been anticipated that more issues would have been amicably resolved than proved to be the case. After the conclusion of the oral evidence detailed submissions were made in writing.
Joseph's family, his care to date and his education
9. Joseph is Mrs. Massey's fifth son. She was married in 1981. Her four other sons were born in 1981 (John), 1982 (Brian), 1984 (David) and 1988 (James). When Joseph was about a year old Mr. and Mrs. Massey separated because of the enormous difficulty in adjusting to life with Joseph. They are now divorced.
10. Joseph's brain injury was diagnosed when he was just a few months old in March or April 1997. In 2001 he underwent a gastrostomy insertion to enable him to feed. In 2005 he was ill with gastroenteritis and underwent a fundoplication procedure.
11. Mrs. Massey has cared for Joseph throughout his life. She has received respite care from her local authority and for a period of 14 months received weekday assistance from a link or foster family.
12. From November 1998 when Joseph was 22 months old he attended a pre-school nursery for 3 mornings a week. From September 2000, when Joseph was aged almost 4, he attended a special needs nursery school for 5 days a week. Since January 2002, from the age of 5 he has attended the Lancasterian Special Needs School.
The oral evidence
13. In relation to the issues of past and future care Mrs. Massey gave oral evidence. I regarded her as an honest and reliable witness although, perhaps inevitably and certainly understandably, there was a degree of hesitancy in giving some answers which did not fully support the case which had been put forward on Joseph's behalf.
14. In addition to the oral evidence of Mrs. Massey there was expert “care” evidence. Wendy Daykin was called by the Claimant and Maureen Bingham was called by the Defendant. Finally, there was a considerable body of expert medical and other evidence which was in essence agreed.
15. Wendy Daykin is a qualified and experienced occupational therapist. She is not a nurse and is not a registered care provider. She does however have considerable experience of advising upon the provision of care in small residential homes for Scope, the charity for cerebral palsy sufferers. She therefore has experience of the type of care required by persons such as Joseph although, until meeting Joseph, she had not encountered a case of dyskinetic or athetoid tetraplegic cerebral palsy as severe as that of Joseph. The manner in which she gave oral evidence suggested that she had a firm grasp of her subject but on occasion she appeared somewhat defensive and sought to avoid answering a question by referring to material in her written reports. However, when errors of mistaken positions were pointed out to her she accepted them and I do not doubt that she was seeking to give an honest account of her opinion.
16. Maureen Bingham is a registered care provider and has been such since 1989. She is also a registered nurse and has an orthopaedic nursing certificate. When working as a nurse, ward sister, senior ward sister and nurse teacher between 1977 and 1985 she had experience of caring for children with cerebral palsy including children with Joseph's form of cerebral palsy. As a registered care provider she has employed carers (up to 200 nurses and carers at one stage) and has contracted to supply care packages to, primarily, hospitals and social services but also, to a much lesser extent, to private individuals. These have included life long care packages for persons with cerebral palsy, both adults and children. In doing so she has had to assess the needs of the client, prepare a care plan with aims and goals, provide the care to achieve those aims and goals and finally evaluate the effectiveness of the care provided. I gained the impression that whilst running her successful business she probably had less “hands-on” experience of caring for sufferers of athetoid cerebral palsy than had Mrs. Daykin when working for Scope.
17. Counsel for Joseph criticised the manner in which Mrs. Bingham gave evidence. It was said that she acted as an advocate rather than as an expert, arguing her case “trenchantly, didactically, repetitively and at great length.” I considered that she gave her evidence with confidence and displayed a considerable grasp of her subject, notwithstanding some errors and omissions in her written opinion. It is true that she often gave long expositions, involving some repetition, rather than concise answers. But where there were errors of detail she accepted them and I have no doubt that she was at all times giving and explaining her opinion honestly.
18. Counsel for the Defendant submitted that Mrs.Daykin had been less thorough than Mrs. Bingham and that her powers of analysis were suspect. Whilst there were parts of her evidence which did not stand up to scrutiny or could have been better researched there were also criticisms to be made of parts of Mrs. Bingham's evidence. I did not consider that a comparison of these failings enabled me to accept Counsel's submission. I thought that both experts had sought to be thorough, reasoned and fair in their reports and oral evidence.
19. The subject matter of both experts’ reports is the assessment of the cost of past care and a prediction of the cost of future care. Notwithstanding the impressive detail of both reports the subject matter is not one in respect of which precision can be expected. This has to be kept well in mind when resolving...
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