Lat (a child suing by his mother and litigation friend Pat) v East Somerset NHS Trust (now Yeovil District Hospital NHS Foundation Trust)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Reddihough |
| Judgment Date | 08 July 2016 |
| Neutral Citation | [2016] EWHC 1610 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X02956 |
| Date | 08 July 2016 |
[2016] EWHC 1610 (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: HQ13X02956
Miss E.A. Gumbel QC (instructed by Withy King LLP) for the Claimant
Miss M. Bowron QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing date: 23 June 2016
This is an application on behalf of the claimant under CPR 25.7 for an interim payment in respect of his claim for damages against the defendant arising out of the defendant's negligent failure properly to treat him during the neonatal period and in particular in failing to treat his hypoglycaemia appropriately.
The claimant was born on 31 st August 2002 so that he is now aged 13 years. The proceedings were served on the defendant in June 2013 and liability was admitted in full on 14 th July, 2014. On 10 th October 2014 judgment was entered for the claimant for damages to be assessed and an interim payment in the sum of £250,000 was ordered. That is the only interim payment which the claimant has received to date.
On 16 th April 2015, at a costs case management hearing, various directions were given in relation to the assessment of damages including directions for the service of experts' reports and a Schedule of Loss. Subsequently a trial date in February 2017 was allocated for the assessment of damages. The claimant has served a number of experts' reports and in April 2016 served a preliminary Schedule of Loss and Damages containing losses calculated up to 28 th February 2017 and future losses thereafter.
As a result of the defendant's negligence, the claimant has suffered serious neurological damage resulting in spastic diplegic cerebral palsy, learning difficulties, epilepsy, visual problems and behavioural problems. Details of his condition and prognosis, including life expectancy, are contained in a medical report dated December 2015 from Dr. Richard Newton, consultant in child and adolescent neurology, instructed on behalf of the claimant.
At the time of Dr. Newton's report, the claimant had been assessed as having a reading age of 6 years with a spelling age of 5 to 6 years. Although he can count one for one up to about 30, he does not have any sense of monetary value. A neuropsychological assessment by Dr. Warner-Rogers in December 2015 showed some skills in the average range but his processing speed and visual perceptive abilities are significantly below average for his age. He also has difficulties with problem solving, attentional control and flexibility in thinking which lead to impaired educational performance. He had been in mainstream primary school, but his transition to a mainstream secondary school was a very unhappy experience for him and he now attends Avalon Special Needs School in Street, where he is doing well.
Dr. Newton said that the claimant communicates with speech which is readily understood and his concentration is good if engaged in something he really enjoys. He has significant motor impairment. He walks confidently on a flat surface using a widely spaced gait but even on a flat surface, especially if it becomes uneven, he is very unstable. He uses a frame walker for stability and requires a wheelchair for longer distances. He ascends stairs one step at a time and descends on his bottom. Whilst he is able to undertake some everyday tasks, he regularly needs help or supervision, for example with dressing, washing and cleaning his teeth. He occasionally has stress incontinence. From the age of 6 years he has suffered from epilepsy which is treated with drugs which have largely controlled his clonic seizures, although more recently he has regularly been having paroxysmal episodes which may represent seizures.
Dr. Newton concluded that the claimant's motor impairment involves extreme clumsiness so that he requires help with daily living skills. His motor impairments are seen in association with intellectual impairment such that it is highly likely he will need a level of supervision for managing his own affairs and daily living skills for the rest of his life. His level of motor disability should not increase provided he has continuing therapy throughout his life. Overall, Dr. Newton was of the view that the claimant is probably functioning in the range of children towards the upper end of severe learning difficulties and the lower end of those with moderate learning difficulties. If he is offered suitable opportunity and encouragement, he should continue to learn steadily within this functional range. So far as the claimant's life expectancy is concerned, Dr. Newton, by reference to various published studies and papers, was of the view that it will be to the age of 78 years.
The claimant's mother and father separated some eighteen months after the claimant's birth, but remain on good terms. Thus, the majority of the claimant's care has been undertaken by his mother, although his father has made a significant contribution to his care over the years and sees the claimant very regularly, now having him for an overnight stay once a week.
I have read a lengthy statement from the claimant's mother and a shorter statement from his father. The mother's statement gives a very good indication of the claimant's difficulties and the care and supervision which he has required over the years. One serious concern which has arisen in the last couple of years is the claimant's behavioural problems. He has temper tantrums and has been aggressive towards his parents and on occasion has lashed out at them or put his hands around his mother's neck. This behaviour largely occurs at home and he is reasonably well behaved at school. There are obvious concerns about this behaviour and Dr. Warner-Rogers and Dr. Newton have advised that the claimant should have the input and support of a psychologist to seek to improve his behaviour at home. Dr. Newton has stated that this behavioural problem, as the claimant moves through adolescence and becomes bigger, presents the potential that he will require two carers and possibly more to avoid harm both to himself and to others. As it was considered that the intervention of a psychologist should be in place for the next two to three years, Dr. Newton strongly advised that final decisions on the claimant's future level of care and support should be delayed until the issue of the claimant's behavioural problems is resolved. Clearly, whether or not the claimant will require one carer, or two or more carers, on a 24 hour basis in the future will have a very large impact on the cost of future care and case management. On the basis of the costings of Mrs. Maggie Sargent, the claimant's care expert, the difference between the capitalised cost of one carer and two carers for life, using a life multiplier of 28.7 (based on the life expectancy to age 78) is some £2.5 million.
By reason of this issue, the parties have agreed that the assessment of damages hearing in February 2017 should be vacated and the claim stayed until the end of 2018, by which time the position as to the claimant's behavioural problems should be clearer. Accordingly, at the hearing before me on 23 rd June 2016, I so ordered and directed that there should be a further costs case management hearing in March 2019, and I made other consequential orders.
The claimant's application for a further interim payment, which I now have to consider, seeks a payment of £1.75 million on top of the £250,000 interim payment already made. The application is based on the claims set out in the claimant's schedule served in April 2016, but on the basis that the assessment of damages will now not take place until February 2021 by reason of the stay on the proceedings referred to above. The main reasons for this application for a further interim payment are that the claimant and his mother are living in arguably unsuitable rented accommodation and need to purchase and adapt a suitable permanent home, and that a care regime needs to be implemented, particularly because of the claimant's increasing behavioural problems.
The defendant does not oppose the ordering of a further interim payment, and indeed has offered to make such payment in the sum of £1 million, but submits that the Court should not order any payment in excess of that amount.
In support of the application, the claimant relies upon the witness statement of Paul Rumley, his solicitor, and a substantial bundle of documents containing the statements of the claimant's parents, experts' reports, including those to which I have already referred, and the Schedule of Losses. The defendant has not yet served any experts' reports. However, exhibited to the statement of the associate at the defendant's solicitors, Ms. Garrett, opposing this application, is a report from the defendant's care expert, Stephanie Cotterell, dated June 2016 (redacted in relation to future costs) which does refer to the views and findings of some of the defendant's experts. Ms. Garrett also exhibits a letter dated 17 th June 2016 from Stephen Fisher, an accommodation expert, and a letter dated 21 st June 2016 from Dr. Jane Hood, an educational psychologist. I was greatly assisted at the hearing by written and oral submissions from Leading Counsel for the claimant and for the defendant.
The claimant clearly satisfies one of the conditions entitling him to an interim payment under CPR 25.7 in that judgment has been entered for damages to be assessed. However, under 25.7(4) "the Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final...
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