Miss Eva Rose Totham (Protected Party suing by her Mother and Litigation Friend Mrs Sarah Elizabeth Totham) v King's College Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Elisabeth Laing |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 97 (QB) |
| Docket Number | Case No: HQ10X03181 |
| Court | Queen's Bench Division |
| Date | 22 January 2015 |
[2015] EWHC 97 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Elisabeth Laing DBE
Case No: HQ10X03181
Mr William Latimer-Sayer and Catriona Stirling (instructed by Hodge Jones & Allen LLP) for the Claimant
Mr Alexander Hutton QC (instructed by Kennedys Solicitors) for the Defendant
Hearing dates: 4, 5 and 12 December 2014
Introduction
This is a claim for damages for serious brain injuries which the Claimant ("Eva") suffered during her delivery at King's College Hospital on 4 October 2007. The Defendant ("the Trust") has accepted liability for those injuries. Eva and the Trust have also agreed some heads of damage. This is my decision, after a three-day hearing, on the remaining disputes about damages. I was also asked to approve the parties' agreement to settle 20 various heads of damages. I have read and considered the advice by the Claimant's counsel about this. I record my approval of that settlement in this judgment, having announced it in open court in the course of the hearing.
The facts
Given the Trust's concession on liability, I do not need to say anything about Eva's delivery. The relevant facts for my purposes are the facts about Eva's current condition and prognosis, in so far as these have a bearing on the appropriate compensation for her injuries.
Eva suffered a grade 2 hypoxic ischaemic injury at birth. Initially the prognosis was unclear. Although a full developmental assessment in February 2008 suggested that everything was normal, it became clear that Eva was having problems with her posture and muscle tone. By June 2008, she was showing signs of cerebral palsy. Eva is now 7 years old. She is generally healthy, and weighs about 16kg. She lacks muscle strength and dexterity in her hands and arms. She finds it hard to control the position and movement of her head. It is hard for her to sit, or to get around, without help. She cannot walk without help. She has a manual wheelchair which she cannot propel, a walker, in which she can walk, and a TomKat tricycle which she can pedal.
She no longer suffers from seizures, perhaps because these are controlled by sodium valproate. But she has a startle response to loud noises. She is on medication to control this, to control her dribbling and to help her with movement. At the date of her parents' first witness statement, she was continent during the day, but not at night; her parents were working on this, and said that when she was continent at night, she would need someone to help her on and off the toilet at night. She is now continent at night. She generally sleeps well, although she wakes up at least once, needing a drink of water. As she gets older, it is likely that she will need someone to be with her all the time.
She goes to a mainstream primary school, with one-to-one support. She started there in September 2012. Before that she went to nursery part-time. She needs help to get any benefit from the curriculum. It is already harder for her to do this than it was in the reception class, partly because, as a result of her physical disabilities, it takes her so long to do each task. Her parents are concerned that she needs, and will need, much more help than is being provided at school at the moment to enable her to achieve her full potential.
I watched the "Day in the life of" DVD. It is very moving. Eva is a beautiful, engaging child. Her eyes shine. She is determined, and concentrates hard on any given activity. She clearly enjoys the company of her family, and there seems to be a touching bond between her and her younger sister. She is generous both in giving, and receiving, affection. She loves hugs and cuddles. She has an evidently strong need for human contact. It is clear that she very much wants to be able to speak to other people. The physical difficulties she faces in articulating what she wants to say are formidable. Nonetheless, as was clear, for example, from the session with the speech and language therapist, and from the scenes with her family, and at school, she is determined to try and try. She wanted to explain her feelings about thunder, and it seemed clear to me that she did not enjoy it because it is loud. In their witness statement, her parents say that she has a big vocabulary, and they can understand much of what she says, but that there is a significant gap between what she can understand and what she can say, which is as much a source of frustration for them as for her. Regular speech and language therapy have helped a good deal.
She does many physical activities with apparent enthusiasm and enjoyment, such as riding her adapted trike. Mr Totham described in his evidence how greatly she enjoys hippotherapy. But there is no denying that everything she does is a hard struggle, for example, when she was using the posting box. She clearly wants to succeed at everything she tries. But it is clear that she cannot do, and will not be able to do, without a good deal of help, any of the things that able-bodied people carelessly take for granted, such as getting out of bed, moving around, feeding herself, or dressing herself. That is confirmed by her parents' evidence.
I had a strong sense of an energetic, inquisitive mind trapped in a body that will not do what Eva would wish it could do. She is clearly a very determined girl. Although there were but a few signs of this in the DVD, her parents say that she already gets very frustrated by her limitations, which is upsetting for the whole family. She suffers from "dramatic mood swings which she seems unable to control". When she is in this frame of mind she refuses to co-operate. This affects her learning and disrupts family life. Mrs Totham described this in her oral evidence. She explained that part of Eva's brain injury involves the basal ganglia, which regulate emotion. This is supported by an MRI scan referred to at paragraph 8.1 of Mr Reid's report. Eva suffers from what Mrs Totham described as a "double whammy" of frustration and lack of control of her mood.
In some ways, the DVD paints a somewhat artificial picture of daily life, in the sense that Eva clearly knew that she was, and very much enjoyed being, the centre of attention. I could see that she was aware of the camera. Mrs Totham explained in her oral evidence that Eva's mood fluctuations mean that despite her evidently engaging personality, the family are very much "on a knife edge" as things can suddenly fall apart. If she is not getting full attention, or if something is not quite right, for example a strap is in the wrong place, she can "react in a very extreme way". This is compounded by the fact that she cannot always express her needs clearly. If a parent leaves the room momentarily, to put the kettle on, or go to the toilet, she gets very agitated. Sometimes her parents know what the issue is and sometimes they do not.
I am satisfied, on the balance of probabilities, that Eva is beginning to be aware of the limitations which her injuries now impose, and will always impose, on the scope of her life, and that that realisation will be an increasing source of frustration and perhaps unhappiness. In other words, she has a dawning insight into her condition, and that insight may well increase as she matures.
It is clear that her family love her. They are caring for her with humour, affection, and devotion. But the physical and emotional strain which this must cause should not be under-estimated. As she grows older, and becomes bigger and heavier, those strains will inevitably increase, as will the logistical difficulties of providing that care. I have read the joint witness statements of Eva's parents. They are both well qualified and have professional jobs. I was impressed by the matter-of-fact and good-humoured way in which her parents gave evidence at the hearing. They did not ask for sympathy or exaggerate the practical difficulties of looking after Eva. I was also very impressed by the sensible way in which they are getting on with things and doing what they can to make life for their family as ordinary and as fulfilling as possible.
The correct approach
The parties agree what my general approach should be (see paragraph 26 of the Trust's skeleton argument). There are two fundamental points. The first is that the purpose of an award of damages in these circumstances is, so far as is possible, to put Eva in the position she would have been in had the Trust not negligently injured her. Eva is "entitled to be compensated as nearly as possible in full for all pecuniary losses…..Subject to the obvious qualification that perfection in the assessment of future compensation is unattainable, the 100% principle is well established and based on high authority": see per Lord Steyn in Wells v Wells [1999] AC 345 at 382–3. The application of this principle to past losses is relatively straightforward. Past losses are ascertainable with some accuracy. Its application in practice to future pecuniary losses is necessarily more difficult.
The second fundamental point is that deciding whether a head of loss is recoverable, and, if so, its amount, involves an assessment of the reasonableness both of the claimed head of loss and of its amount: Sowden v Lodge [2004] EWCA Civ 1370. This principle was explained in two ways by Stephenson LJ in Rialis v Mitchell (1984) The Times 17 July, at pages 24–26 of the transcript. First, the duty to mitigate loss is a duty to take reasonable steps; and second, it is a foreseeable consequence of a defendant's negligence that a claimant will take...
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