KLM v EUI Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Reddihough,H.H. Judge Reddihough |
| Judgment Date | 24 June 2016 |
| Neutral Citation | [2016] EWHC 1497 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16P00355 |
| Date | 24 June 2016 |
[2016] EWHC 1497 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Reddihough
(Sitting as a Judge of the High Court)
Case No: HQ16P00355
Mr Richard Cartwright (instructed by Irwin Mitchell LLP) for the Claimant
Mr Benjamin Browne QC (instructed by Horwich Farelly) for the Defendant
Hearing date: 15 June 2016
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.
This is an application on behalf of the claimant under CPR 25.7 for an interim payment in respect of her claim for damages for personal injuries, loss and damage arising out of a road traffic accident which occurred on 24 th October, 2014. She was a passenger in a car driven by her boyfriend, who was insured by the defendant. On 6 th May, 2015, the driver's liability for the accident was admitted in full by the defendant and on 9 th May, 2016, it was ordered that judgment be entered for the claimant for damages to be assessed. An order was made by the Court of Protection on 11 th April, 2016, appointing a Deputy for the claimant.
The claimant is now 18 years of age, having been born on 22 nd January, 1998. In the accident, she suffered serious multiple injuries which included facial and frontal bone fractures, orbital and retro-orbital damage, T5–7 transverse process fractures, rib fractures with bilateral pneumothoraces, skull fractures and very severe brain injury. The claimant's injuries, treatment, progress, prognosis and likely future needs are set out in a detailed report dated 11 th November, 2015, from Dr. Clarence Liu, a consultant neurologist, instructed on behalf of the claimant.
At the time of Dr. Liu's report, the claimant was in a minimally conscious state. Whilst she had become medically more stable and had some improved awareness and physical abilities, there remained ongoing significant sequelae of her brain injury, with various physical, communicative, cognitive and behavioural disabilities. She had poor insight and was not consistent with her responses. She had tetraparesis but had been able to participate in facilitated standing, stepping, land and water based therapy sessions. She was tolerating seating up to four hours at a time in a tilt in space wheelchair. She had some upper limb movement, particularly on the left. She had managed oral tasters, but otherwise continued to rely on tube feeding for her nutrition, hydration and medications. She remained doubly incontinent. Her communication was very impaired and she vocalised rarely and at single word level. Although there had been improvement in her awareness, she still had severe deficits likely to involve all cognitive domains such as orientation, memory, processing, executive functions, problem solving, high level cognition, visuospacial abilities and mental fatigue.
Dr. Liu said that, despite the improvements which the claimant had made by the time of his report, she will always have complex disabilities with a combination of severe physical, communicative, cognitive and behavioural difficulties, necessitating ongoing therapy and specialised medical and care input. It was too early to say whether the claimant would emerge from a minimally conscious state. It was noted by Dr. Liu that a study of very young children showed that nearly 40% of them had emerged from such a state after three years, but similar data series are not available for teenagers. The claimant has a significantly elevated risk of post-traumatic epilepsy. Dr. Liu considered that her life expectancy has been significantly diminished, but that life expectancy is better ascertained when at least three years from the accident.
So far as prognosis was concerned, Dr. Liu said the tetraparesis would be permanent, although there had been significant improvements in the claimant's mobility. She had the potential to improve her mobility with facilitated standing/stepping but was unlikely to carry out any significant degree of walking. Her cognitive processing will always be significantly affected. She was always likely to rely on tube feeding. She is unlikely to have any useful verbal communication. She is unlikely to gain independence and will require significant support for all her personal, domestic, community and leisure activities for life and will need specialist day and night carers.
After her hospital treatment following the accident, the claimant was transferred to Chailey Heritage Foundation (Chailey) near Lewes on 28 th January, 2015, and remains an inpatient there. At the rehabilitation unit at Chailey, the claimant is the subject of an intensive neuro-rehabilitation programme with input from a variety of therapists. Her mother visits her every day and she receives regular visits from other family members and her boyfriend.
At the time of the accident, the claimant, who had passed several GCSEs, was enrolled on a NVQ Level III course in horse management at Plumpton Agricultural College. Her mother has said that the claimant's career plan was to run her own livery yard or join the mounted police. Before the accident, the claimant was living at home with her parents and younger brother in a terraced three bedroomed two storey house in Brighton. A Housing Needs Report by Brighton & Hove City Council (the Council) dated 30 th March, 2015, concluded that that home is unsuitable for the claimant's present needs. It is also not considered suitable for adaptation.
The claimant's placement at Chailey is currently funded by the Council and the funding is guaranteed until 31 st July, 2016, but with the possibility of it being extended to the maximum period of two years from the date of the accident, namely October 2016. The cost at Chailey is approximately £900 per day.
A Progress Report on the claimant from Chailey dated 15 th March, 2016, indicated that she had made a number of improvements since the time of Dr. Liu's medical report. She was showing a lot of consistent non-verbal communication and her mobility had improved. On a visit to her former college, she was very vocal and was trying to engage with her friends there.
It is proposed that, once the claimant's inpatient rehabilitation is complete, she should move into a suitable property with her family and be looked after there by an appropriate skilled care team and with ongoing necessary therapies. In his report of 11 th November, 2015, Dr. Liu said that after a further 6–12 months inpatient rehabilitation, the plan should be for the claimant to be discharged to the community to live with her family in an appropriate disability adapted property. In a letter from Dr. Liu dated 16 th May, 2016, he noted the significant progress which the claimant had made as detailed in the Progress Report of March 2016. He therefore considered that there should be a further period of rehabilitation at Chailey for twelve months. He said the discharge planning for her move into suitable accommodation and the setting up of a care regime should be considered as early as possible.
Professor Christine Collin, a consultant in neurological disability medicine, had examined the claimant on behalf of the defendant on 10 th December, 2015, although her report was not before me. She stated in a letter dated 2 nd May, 2016, that she thought the progress which the claimant had made was not consistent or reliable. She said that she and Dr. Liu agreed that the claimant remained in a minimally conscious state. She recommended that the claimant should remain at Chailey for further rehabilitation until it is shown she is no longer benefitting from it, or at least until a further year has elapsed with no significant change.
Dr. Liu and Professor Collin have expressed provisional views regarding the claimant's life expectancy, although they will not be able to express a final view until about three years after the accident, by which time it is likely that the claimant's final condition after rehabilitation and recovery will be clearer. In a letter dated 25 th January, 2016, Dr. Liu, by reference to studies by Shavelle and Strauss, stated that the claimant's life expectancy lay between 13 and 31 years, but was likely to be close to the higher figure in the range.
In a letter dated 3 rd May, 2016, Professor Collin estimated the life expectancy, if the claimant remained in a minimally conscious state, as 12 to 16 years. If she emerged from that state but was not walking and was fed by others, by reference to Professor Strauss's study a life expectancy of 24 to 25 years would be predicted. She had also sought comments from Professor Strauss, who referred to his more recent studies (and the slightly higher UK life expectancy over the USA). Her conclusion was that the claimant's life expectancy would be in the range of 17–25 years, but at the lower end if she remained in a minimally conscious state. In his letter dated 16 th May, 2016, Dr. Liu commented on Professor Collin's views and agreed that 28% to 41% of normal life expectancy was the range (20–30 years), but the lower end of the range was too pessimistic as voluntary motor function had to be considered even if the claimant remained in a minimally conscious state, which would increase the life expectancy to half way up the range.
It appears that it is agreed by Dr. Liu and Professor Collin that the claimant should remain at Chailey probably for at least the next twelve months. To meet the concerns raised by Ms. Hurney, the claimant's solicitor, in her witness statement in support of the interim payment application, regarding...
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