Lamarieo Manna (A Child and Protected Party by his Father and Litigation Friend Samuel Manna) v Central Manchester University Hospitals NHS Foundation Trust

JurisdictionEngland & Wales
JudgeLord Justice Tomlinson,Lord Justice Ryder
Judgment Date18 January 2017
Neutral Citation[2017] EWCA Civ 12
Docket NumberCase No: B3/2015/3424
CourtCourt of Appeal (Civil Division)
Date18 January 2017

[2017] EWCA Civ 12

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MRS JUSTICE COX

[2015] EWHC 2279 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Tomlinson

and

Lord Justice Ryder

(Senior President of Tribunals)

Case No: B3/2015/3424

Between:
Lamarieo Manna (A Child and Protected Party by his Father and Litigation Friend Samuel Manna)
Claimant/Respondent
and
Central Manchester University Hospitals NHS Foundation Trust
Defendant/Appellant

Derek Sweeting QC and Richard Baker (instructed by hlw Keeble Hawson LLP) for the Claimant/Respondent

Lord Faulks QC (instructed by Hempsons) for the Defendant/Appellant

Hearing date: 8 December 2016

Lord Justice Tomlinson
1

This is an appeal in respect of one item only of an award of damages made by Cox J on 1 October 2015 in favour of the Claimant/Respondent Lamarieo Manna, then 18 years of age. There is also a challenge to the judge's order requiring the Defendant/Appellant Health Authority to pay on the indemnity rather than the standard basis the Claimant's costs incurred from 11 June 2015, including therefore the costs of the trial which started on 15 June 2015, lasted for 8 days and in the course of which a considerable body of expert evidence was heard.

2

The Claimant was profoundly damaged in consequence of failings in the management of his birth at St Mary's Hospital Manchester on 20 December 1996. He suffered severe brain damage resulting in widespread neurological dysfunction. He has bilateral tetraparetic cerebral palsy and very severe cognitive, social and communication impairments, with profound autism. There is no dispute that he is severely disabled. His condition is permanent and he will therefore remain dependent in respect of all daily living activities for the rest of his life.

3

Proceedings were commenced on 19 November 2009. The allegations of breach of duty in the management of the Claimant's birth were all denied, as was causation of injury. By order of Swift J dated 24 June 2013 judgment was entered for the Claimant, on her approval, for damages to be assessed at 50% of the full value of the claim.

4

The main issue at trial concerned the nature and extent of the Claimant's difficulties and of his manageability, both then and in the future.

5

The judge summarised the opposing stances adopted by the parties at trial as follows:

"4. In summary Mr Seabrook QC, on behalf of the Defendant, acknowledges the challenges that Lamarieo presents and the huge demands his condition gives rise to. It is contended, however, that the case presented for the Claimant paints a far bleaker picture than is supported by the objective evidence. The key to his manageability, as the Defendant's experts suggest, is forward planning, anticipation of recognised triggers leading to violent outbursts and a support and therapy regime that affords him space and enables him to develop his independence. This can be achieved by allowing for one carer to be present at all times, plus additional hours for a flexible carer for some outings or at times of need, together with the moderate occupational activities and equipment recommended by the Defendant's experts.

5. On behalf of the Claimant the case advanced by Mr Sweeting QC and Mr Baker is that the evidence shows Lamarieo to be prone to violent, aggressive and unpredictable outbursts. His severe intellectual limitations and behavioural problems are the product of his brain injury. There will be no change or improvement in his condition and the evidence shows that he is likely to continue to pose a serious risk to himself and to others, including his carers, without the tight care and occupational support structure considered necessary by the Claimant's experts. Lamarieo therefore needs two carers at all times for personal care and community activities and a structured routine and regime of activities to fill his days."

6

The judge produced a long and careful judgment, available at [2015] EWHC 2279 (QB). Reference may be made to that judgment for the full background and for the judge's careful conclusions. It suffices for present purposes to say that the nature of the Appellant's case involved a robust challenge to the evidence of the Claimant's mother and stepfather, which challenge wholly failed. The difference between the award made by the judge and the provision which the Appellant regarded as adequate is very largely accounted for by the judge having concluded, in agreement with the Claimant, that he would at all times for the rest of his life require two full-time carers. It was agreed that he was expected to live to the age of 67.5 years. However another acute difference in approach related to the cost of adapted accommodation, and in particular to the need to provide adapted accommodation at which the Claimant could spend time, including overnight stays, with his natural father. It is to the judge's resolution of this last issue that the first two grounds of appeal are directed.

Background

7

When the Claimant was born his mother Marva, now Marva Cocking, was married to his father Sam Manna. At the date of trial in 2015 Marva Cocking was 37 and Sam Manna 67. In 1996 when the Claimant was born they lived together in Moss Side, Manchester in Mr Manna's two bedroom, two storey council house.

8

The relationship between Lamarieo's mother and father ended in 1998 and they subsequently divorced, but they remained living in the same house, both sharing Lamarieo's care, until June 2000.

9

Marva Cocking had met Brett Cocking in December 1999 and they started living together in Bolton in June 2000. Then Mrs Cocking was pregnant with twins, the first two of a total of four further children which Mr and Mrs Cocking have had together. There were problems in Mrs Cocking's pregnancy with her twins in consequence of which Lamarieo continued to live with his father Sam Manna in Moss Side until March 2001. The twins were born in December 2000. Throughout this time Mrs Cocking and Mr Manna shared the care of Lamarieo.

10

In March 2001 Lamarieo went to live in Bolton with Mr and Mrs Cocking and their twins.

11

Between March 2001 and September 2013 Mrs Cocking and Mr Manna shared the care of Lamarieo. Lamarieo spent 3 out of every 4 weekends and a substantial part of the school holidays with Mr Manna in Moss Side. This arrangement came to an abrupt end in September 2013 when Mrs Cocking discovered that Mr Manna had been leaving Lamarieo on his own in the house at Moss Side for short but nonetheless inappropriate periods of time. Thereafter and until trial Lamarieo had only limited contact with his father. Thus from September 2013 Mrs Cocking was Lamarieo's principal carer, although she sometimes received assistance from agency carers, and from May 2014 a carer called Jackie Lee had provided regular care.

12

Going forward, the various family members, and particularly Mrs Cocking, did not want to act as primary carers but preferred instead to concentrate on maintaining family life with Lamarieo. It was agreed on all sides at trial that the Cockings' current home in Bolton was unsuitable to accommodate the needs of Lamarieo and his carer/s, and that it could not be adapted. Mrs Cocking and Mr Manna both expressed the wish that the shared care arrangement should be resumed, with Mrs Cocking's agreement thereto dependent upon suitable accommodation being available to Mr Manna, with space both for Lamarieo and his carer/s. It was again agreed on all sides at trial that Mr Manna's current home in Moss Side is unsuitable to accommodate Lamarieo and his carer/s overnight and that it could not be adapted.

13

Thus the judge was presented with claims for the cost of acquiring suitable accommodation for both Mr and Mrs Cocking, the principal home, and for Mr Manna, which perhaps somewhat inappropriately came to be described as the second home. The Appellant's opposition to the claim for a second home was somewhat undermined by its positive case to the effect that Lamarieo's behaviour and manageability had deteriorated, at least in part, because of the enforced separation from his father in 2013.

14

The judge quantified the claim for a new principal home at £817,925.50 on a 100% basis. The Appellant would have liked to challenge her conclusions in that regard but has been refused permission so to do.

15

The judge also concluded that Lamarieo was entitled to recover the costs associated with acquisition of a second property in which Mr Manna would live and again quantified the claim, this time at £368,578 on a 100% basis. It is against that conclusion that the appeal is brought, the Appellant challenging both the award in principle and one vital element in the judge's quantification thereof, viz, the adoption as applicable in the Roberts v Johnstone calculation of the multiplier appropriate to Lamarieo's life expectancy rather than that appropriate to his father's life expectancy.

16

In relation to both the principal and the second home the judge adopted the approach to quantification established by the decision of this court in Roberts v Johnstone [1989] 1 QB 878. Under that principle, a claimant does not receive an award equivalent to the capital cost of purchasing a suitable property. An award calculated on that basis would give rise to the possibility of the claimant's estate receiving a windfall on his/her death in the shape of a capital asset enhanced rather than eroded by the passage of time. Damages in cases of this sort are notionally intended to provide a fund which will both meet the claimant's life-time needs and be exhausted contemporaneously with the termination of the claimant's life expectancy. Roberts v Johnstone prescribes that the claimant should, in respect of the cost of accommodation, be compensated for the notional loss of investment...

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