JR (a Protected Party by his Mother and Litigation Friend JR) v Sheffield Teaching Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 25 May 2017 |
| Neutral Citation | [2017] EWHC 1245 (QB) |
| Docket Number | Case No: HQ13X03449 |
| Court | Queen's Bench Division |
| Date | 25 May 2017 |
[2017] EWHC 1245 (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: HQ13X03449
Derek Sweeting QC and Richard Baker (instructed by Switalskis) for the Claimant
Margaret Bowron QC (instructed by DAC Beachcroft) for the Defendant
Hearing dates: 26 th to 28 th April, 2 nd to 4 th May 2017
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.
The Claimant is now aged 24. He was born on 14 November 1992. His birth was premature. He was delivered by vaginal breech delivery. Because of the traumatic nature of that delivery he suffered intracranial haemorrhage and brain injury. This has caused moderately severe spastic cerebral palsy and significant cognitive impairment. It is accepted that his injury was caused by the negligence of the Defendant as the party responsible for the hospital in Sheffield at which he was delivered. It is not in dispute that, because the Claimant was a pre-term infant in breech presentation, the appropriate mode of delivery was caesarean section. Those who had the care of the Claimant's mother were in breach of duty in attempting a vaginal delivery.
The damages recoverable because of the Defendant's breach of duty in part remain in dispute. Equally, substantial parts of the claim have been agreed. Due to his cognitive deficit, the Claimant is a protected party. Thus, part of my task is to approve those sums which have been agreed. Given that context I have been invited to make an anonymity order for the reasons discussed in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96. I make such an order. Nothing shall be published which could identify the Claimant whether directly or indirectly and that non-parties shall not have access to any document in the court records. This judgment has been anonymised accordingly.
The Claimant's progress to date and continuing condition
JR has severe motor impairments. He has spasticity affecting the muscles of speech and swallowing. His speech is slurred but he can make himself understood. He has little difficulty with swallowing. Spasticity is very severe in the muscles of all four limbs. JR has no effective movement of his lower limbs. He has fixed flexion deformities at the hip and knees. There is significant impairment of motor function in the upper limbs. JR's hands have very limited function, the right hand being better than the left. The consequence of these neurological impairments is that he is wholly dependent on others for most aspects of daily living: all transfers; dressing; personal hygiene. He can feed himself but all his food and drink needs to be prepared for him. Because he has difficulty rolling or manoeuvring in bed, he needs regular night time assistance.
The brain injury led to significant cognitive impairment. Neuropsychological testing has established that JR has difficulties of varying severity in relation to his ability to understand, organise, process and act on information. His level of sustained attention and concentration is significantly reduced from the norm. He has some impairment of higher executive functioning. Overall his intellectual functioning is within the borderline range. These consequences flow from the brain injury suffered at birth.
Over the years JR has had several surgical interventions, the most recent being a femoral osteotomy of the right hip in 2007. In 2004 an intrathecal Baclofen pump was inserted with a view to controlling the spasticity and this requires regular attention.
JR will require continued and regular supervision from a wide range of medical disciplines. A neurological team with experience in the management of intrathecal Baclofen (such a pump not being in common use) will be required to monitor JR. The pump will have to be replaced periodically. This will involve an operation under general anaesthetic at each replacement. He will require supervision from a multi-disciplinary neurorehabilitation team with particular input from physiotherapists and occupational therapists. It is likely that JR's upper limb function will deteriorate as he grows older. This will not affect his care requirements to any significant degree given the high level of care he needs now. It may impact on the level of physiotherapy required to maintain JR's function to a reasonable extent.
Other than a deterioration in upper limb function JR is unlikely to suffer any other later complication. His future risk for development of epilepsy is greater than that for the population as a whole but not substantially so. If epilepsy were to develop, it would be controlled by appropriate drug therapy. JR's life expectancy has been reduced as a result of his severe motor impairment. The medical consensus is that he will have a life expectancy to the age of 70.
Notwithstanding the severe nature of JR's injuries he is described by all who have had dealings with him in the course of this litigation as a delightful young man with an outgoing personality and many interests. Despite his cognitive deficits he attended a further education college after he left school and undertook a course in digital media. He did not complete the course but only because at the time he had no funding to meet the cost of support workers he required. He retains an interest in IT and photography. His physical limitations do not prevent him from participating in powered wheelchair football matches on a regular basis. I have seen video footage of one such match. It is apparent that JR is a wheelchair footballer of high quality.
For someone with the physical and other difficulties he faces JR leads an extraordinarily active life. He will continue to do so. Indeed, it might be expected that he will seek to widen his interests. He is not someone who regards his difficulties as a barrier to activity. Rather, he sees them as something to be overcome so he can follow his interests.
The issues to be resolved
There has been a considerable measure of agreement between the parties to which I shall return in detail when considering the question of approval. Subject to approval general damages for pain, suffering and loss of amenity are agreed in the sum of £300,000. The entirety of the claim for past financial loss is agreed subject to approval. What are said to be appropriate sums for the future cost of occupational therapy, speech and language therapy, orthotics and podiatry are also agreed together with a substantial sum for miscellaneous expenses.
However, significant areas of dispute remain in respect of future loss which I must resolve. In headline form these are as follows:
• Loss of earnings and pension.
• Costs of care.
• Aids and equipment.
• Physiotherapy.
• Accommodation.
• Assistive technology.
• Travel and transport.
• Court of Protection.
In respect of most of these areas of dispute, the question is whether a particular piece of expenditure is necessary or reasonable. In relation to two matters – loss of future earnings and accommodation – there is an issue as to the proper legal principles to be applied. I shall deal with those two matters first.
The general principles to be applied in a case of this kind are not in issue. The award of damages should so far as is possible put JR in the position he would have been in had he not been injured at birth due to the Defendant's breach of duty. He is "entitled to be compensated as nearly as possible in full for all pecuniary losses…": Wells v Wells [1999] AC 345 at 382. In deciding whether a head of loss is recoverable in the amount claimed or at all, there must be an assessment of the reasonableness of the head of loss and of its amount: Sowden v Lodge [2004] EWCA Civ 1370. The principles are encapsulated in Heil v Rankin [2001] 2 QB 272 at 293/294 as cited in Whiten v St George's Healthcare Trust [2011] EWHC 2066 (QB):
"….. the aim of an award of damages for personal injuries is to provide compensation. The principle is that 'full compensation' should be provided. … This principle of 'full compensation' applies to pecuniary and non-pecuniary damages alike. … The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable".
In Whiten Swift J said that determining what was reasonable involved consideration of all relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived from that item by the claimant. I agree with that proposition. It is to be applied in the way set out in the judgment of Warby J in A v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB) at paragraphs 9 to 15.
Loss of earnings and pension
JR has no prospect at any time of engaging in remunerative employment. This is apparent from all the evidence, in particular the joint statement from Dr Kent and Professor Chadwick who provide the neurological opinion in the case. Thus, it is not in dispute that he is entitled to recover a sum to represent his loss of earnings and pension for life. There are two live issues. First, what is the appropriate annual figure for loss of earnings and for loss of pension for the single year for which any pension would be payable prior to JR's expected date of death? Resolution of this issue is fact specific i.e. the outcome...
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