KD (A Minor) By DK, His Mother and Next Friend v Belfast Social Health and Care Trust
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 05 July 2013 |
| Neutral Citation | [2013] NIQB 78 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 05 July 2013 |
| Year | 2013 |
1
Neutral Citation No. [2013] NIQB 78
Ref:
GIL8862
Judgment: approved by the Court for handing down
Delivered:
05/07/2013
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
________
BETWEEN:
KD (A MINOR) BY DK, HIS MOTHER AND NEXT FRIEND
Plaintiff;
and
BELFAST SOCIAL HEALTH AND CARE TRUST
Defendant.
________
GILLEN J
Background
[1] In this case the minor plaintiff has suffered a tragic catastrophic injury and is
a severely disabled child with:-
• spastic quadriplegic cerebral palsy;
• epilepsy;
• learning difficulties;
• developmental delay with his right side being more severely affected than the
left;
• inability to verbally communicate. He is dependent on others for everyday
functional needs,
as a result of sustaining two episodes of coliform meningitis in the early neo natal
period.
2
[2a] As is now commonplace in cases of this nature a joint meeting of the parties’
advisers was held in order to explore the prospects of settlement and the type of
structure most suited to this case. Liability was eventually admitted and counsel
(Ms Higgins QC with Mr Dornan on behalf of the plaintiff and Mr Elliott QC with
Mr McAlinden QC on behalf of the defendant) have agreed substantial areas of the
quantum subject to my approval.
[2b] Certain aspects of the case were not agreed and as a result I presided over a
trial that lasted 24 sitting days or thereabouts spread over several months due to the
unavoidable indisposition of counsel midway through the trial and latterly due to
the desire on the part of the plaintiff’s advisers to revisit the epilepsy aspect of the
case. The court inevitably relies on experienced counsel, familiar not only with the
calculation of damages in such catastrophic injury cases but also with the financial
structures that can be put in place to ensure the needs of the injured person are met
whilst at the same time providing a measure of assurance for insurers that
uncovenanted windfalls do not result should the estimates at trial have proved to be
over optimistic from the plaintiff’s perspective (see Follett v Wallace [2013]
EWCACiv 146). Virtually all catastrophic cases where the issue is confined to
quantum settle subject to the approval of the court. Blinkered certainty and lambent
precision are rarely productive of a satisfactory outcome in these catastrophe cases.
The good sense of such experienced counsel almost invariably ensures a recognition
that experts may often genuinely and with good reason differ and a degree of
creative compromise across the board by both parties – generosity in one area being
marked by a degree of austerity in another – is usually in the best interests of the
plaintiff in order to avoid the uncertainty of litigation given that he/she has the
assurance that judicial approval is required at the end of the process. I could not fail
to observe the strain that the unfamiliar adversarial nature of this prolonged trial
had upon the plaintiff’s mother as she watched the cut and thrust of the court
process. The stoicism and courage with which she has met the plight of her son
would have been better served if she could have been spared this added stress both
within the witness box and without. It was unfortunate therefore that the legal
advisers on both sides were unable to resolve their differences in the instant case and
I trust that similar future cases will find it possible to fashion a return to the
conventional approach.
[2c] Certain discrete areas of quantum accordingly fell for determination by me on
a broad principles basis with the parties thereafter translating these findings into a
periodical payments order (PPO) for my approval. Thus I shall not be dealing with
any arithmetical calculations in this judgment but merely setting out guidance for
the completion of the PPO by the parties for my approval. I draw the attention of
the parties to RH v University Hospitals Bristol NHS Foundation Trust [2013]
P.I.Q.R p12 in this regard. To that end, I have indicated that this judgment will be
subject to the parties returning to me to deal further with any matter which proves
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