Leo Whiten (A protected party suing by his Mother and Litigation Friend, Samantha Nowell) v St George's Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE SWIFT DBE |
| Judgment Date | 05 August 2011 |
| Neutral Citation | [2011] EWHC 2066 (QB) |
| Docket Number | Case No: HQ06X02292 |
| Court | Queen's Bench Division |
| Date | 05 August 2011 |
[2011] EWHC 2066 (QB)
The Honourable Mrs Justice Swift DBE
Case No: HQ06X02292
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Melville QC, Mr Rohan Pershad QC & Mr Robert Marven (instructed by Kester Cunningham John) for the Claimant
Miss Philippa Whipple QC & Ms Maria Roche (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 30 November–3 December 2010 & 12, 17, 18 & 23 May 2011 & 28 July 2011
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 Hon. Mrs Justice Swift DBE:
THE CLAIM
Introduction
The claimant, Leo Whiten, claims damages for personal injury and financial losses sustained as a result of the defendant's negligent management of his mother's labour and his birth. In September 2005, breach of duty was admitted by the defendant and, in March 2006, the defendant further admitted that its breach of duty had caused the claimant's injury. Proceedings were commenced on 8 August 2006 and, on 30 August 2006, judgment was entered for the claimant. Between 30 November and 3 December 2010 and on 12, 17, 18 and 23 May 2011, I heard evidence and submissions in relation to the issue of quantum of damages. I have since received further written submissions from counsel, who were Mr David Melville QC and Mr Rohan Pershad QC for the claimant and Miss Philippa Whipple QC for the defendant. There was a further hearing today (28 July 2011) at which I dealt with a number of outstanding matters. At today's hearing, Mr Robert Marven appeared with Mr Melville for the claimant and Miss Maria Roche appeared with Miss Whipple for the defendant.
The claimant's claims under the various heads of damages are set out in the Final Updated Schedule of Loss (the Schedule of Loss) and the Supplementary Schedule of Loss filed on his behalf. The defendant's response to those claims is contained in its Amended Counter Schedule (the Counter Schedule) and Supplementary Schedule of Loss. In addition, the parties have prepared a Scott Schedule, setting out areas of agreement and disagreement between them. I shall refer to those documents when dealing with the individual heads of damage. I have calculated all past losses to the claimant's seventh birthday on 24 June 2011. Future losses are deemed to start from 25 June 2011. My awards under the various heads of damage are set out in the Appendices to this judgment.
Many of the heads of damage are in issue and have required detailed consideration in this judgment, hence its length. Whilst some of the disputed matters involve questions of principle and/or large amounts of money, many of them are relatively minor. I cannot help feeling that, had the parties exercised a greater degree of co-operation and good sense, the number of issues to be determined could have been considerably reduced and the amount of time spent on the case in and out of court could have been shortened significantly.
The principles to be applied
In assessing damages in this case, I have had in mind the principles set out by Lord Woolf M.R. giving the judgment of the Court of Appeal in Heil v Rankin et al. [2001] 2 QB 272 at paragraphs 22, 23 and 27:
".. 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".
The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is "reasonable", I have had regard to all the 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 by the claimant from that item.
The form of award sought
It is agreed between the parties that damages for care and case management should be paid by way of periodical payments. Clearly, this arrangement is in the claimant's best interests. It is now agreed that the 90 th centile of the Average Earnings Index (ASHE) 6115 should be used for the annual up-rating of the periodical payments. There was a dispute as to whether the award for loss of earnings should be paid by way of lump sum or periodical payments. I decided today that it was in the claimant's best interests for a periodical payments order to be made. It is agreed that the award should be uprated annually by reference to the ASHE earnings data for the gross annual pay for all male full-time employees in the United Kingdom (currently Table 1.7a).
THE CLAIMANT
The claimant was born on 24 June 2004. He is now seven years old. He is the first child of Simon Whiten (now aged 42 years) and Samantha Nowell (now 33 years old). At the time of his birth, they were living together in London, where they had both had well paid employment. Since the claimant's birth, they have had two other children: Dexter, who was born on 18 October 2007, and Victor, who was born on 11 March 2011.
The claimant's disabilities and prognosis
The evidence relating to the claimant's current condition and the prognosis for the future came from a number of experts, all of whom had examined the claimant and provided Reports and other written material. Dr Richard Miles, consultant paediatrician, and Mr Anthony Baldwin, chartered educational and paediatric psychologist, gave oral evidence on behalf of the claimant. The Report of Mr Mark Paterson, consultant orthopaedic surgeon instructed by the claimant, was not in dispute. Dr Neil Thomas, consultant paediatric neurologist, and Dr Jane Hood, consultant paediatric neuropsychologist and registered educational psychologist, gave oral evidence for the defendant. The two pairs of experts (Dr Miles and Dr Thomas; Mr Baldwin and Dr Hood) provided agreed notes of telephone discussions which had taken place between them prior to the trial.
The claimant's physical disabilities
The experts were agreed about most aspects of the claimant's current condition and prognosis. By reason of the defendant's negligence, he suffered profound hypoxic ischaemic damage and developed a mixed spastic-dystonic severe quadriplegic cerebral palsy. He has hypertonia (stiffness) in all 4 limbs and hypotonia (floppiness) in his trunk. He has limited mobility, the precise extent of which I shall discuss later in this judgment. He cannot stand or walk unaided. His hand function is also very limited and his hands tend to be fisted with his elbows bent. He can open his fingers at times but a change of position, excitement or discomfort can cause his hands to fist again, making any further voluntary movement impossible. He suffers from mild epilepsy which is controlled by medication. However, he experiences frequent involuntary dystonic spasms and is prone to strong extensor spasms, particularly when startled. He has poor head control with a strong asymmetric tonic neck reflex to the right which causes him to look to the right and makes it difficult for him to bring his head into the mid-line. His eyes deviate to the right and he has reduced vision in his left eye and an intermittent convergent squint. He can vocalise but has no functional speech. He is doubly incontinent. His general health is good although he has suffered a number of chest infections in the past. Despite his profound disabilities, it is clear that he is a very engaging and generally happy child who is socially aware and thoroughly enjoys the company and attention of adults and other children.
The claimant's orthopaedic problems
The claimant has various orthopaedic problems which were described by Mr Paterson. He reported that progressive subluxation of the claimant's right hip had occurred during 2008. The claimant had received botulinum toxin injections (Botox) and a course of intensive physiotherapy which had produced some improvement in the position of the hip. Nevertheless, Mr Paterson described the hip as "precarious". He suggested that, on a balance of probabilities, it would require surgical stabilisation at some stage. The aim should be to delay the need for surgery for as long as possible by means of Botox injections, continued intensive therapy and attention to the claimant's posture and positioning. Mr Paterson considered that soft tissue surgery was likely to be necessary within 2–3 years and that there was a 30% chance that bone surgery would be required at the age of 10–12 years.
Mr Paterson also noted some increased spasticity of the claimant's arms. In order to combat this, he recommended daily ranging and stretching of the arms, together with the use of elbow and wrist splints and regular Botox injections. He suggested that surgery might be necessary in the future in order to correct contractures of the arms. Surgical intervention might also be required if a fixed scoliosis of the spine developed, or to lengthen his Achilles tendon so as to preserve his ability to stand with assistance.
The claimant's cognitive disabilities
The experts agree that the claimant has significantly impaired cognitive function resulting in a severe degree of learning disability. Both Mr Baldwin and Dr Hood assessed the claimant at his school, Linden Lodge, in the presence of one or both...
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