Roberts v Johnstone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER,LORD JUSTICE BALCOMBE,LORD JUSTICE MAY |
| Judgment Date | 17 March 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0317-4 |
| Docket Number | 88/0247 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 1988 |
and
[1988] EWCA Civ J0317-4
Lord Justice May
Lord Justice Balcombe
Lord Justice Stocker
88/0247
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice,
MR. HARVEY MacGREGOR, Q.C. and MR. JOHN HOLT, instructed by Messrs. Burton, Yeates and Hart (London Agents), appeared for the Appellant (Roberts).
MR. ADRIAN WHITFIELD, Q.C. and MR. ROBERT FRANCIS, instructed by Messrs. Le Brasseur and Bury, appeared for the Respondents (Johnston and The East Anglian Regional Health Authority).
This is an appeal by the plaintiff against the judgment of Mr. Justice Alliott, given on 25th July, 1986, so far as it related to certain heads of damage forming part of his total award of £334,769.88, damages in respect of personal injuries and consequential loss sustained by the infant plaintiff.
The plaintiff was born on 3rd November, 1981, her natural parents being Mr. and Mrs. Roberts, who as next friends commenced an action by writ dated 26th April, 1984. The Official Solicitor was substituted as next friend on 27th August 1985.
Although put in issue on the pleadings, liability was admitted at trial, which accordingly proceeded solely on the question of quantum. It is therefore unnecessary to recite at any length the circumstances attendant upon the plaintiff's birth or detail of the negligence and breach of duty alleged against the defendants, who are respectively the consultant obstetrician and gynaecologist and the Regional Health Authority who were his employers. It is sufficient to say that since the blood-group of the mother was rhesus negative, and she had erroneously in 1975 received a blood transfusion of rhesus-positive blood, and the father's blood-group was rhesus positive—all matters known to the defendants—there was a severe risk that unless the appropriate treatment was given to the mother, after conception and before birth, any child born to the mother would suffer from haemolytic disease of the newly born. The treatment was not given, and the plaintiff was born with a severe form of this disease. This and other associated conditions have resulted in the plaintiff suffering from very severe disabilities. She is deaf and it is doubtful whether a hearing aid does, or ever will, assist her. She is mentally retarded and exhibits autistic behaviour. The whole of the brain has been affected and she suffers from cerebral palsy. The brain is not growing as it should, and the plaintiff will never achieve a mental age, as the judge found, beyond that of a 4-year old. She will therefore throughout her life expectation of about 30 years be severely disabled and require attention. She cannot yet walk, and medical opinion was divided as to whether or not she ever would walk. The judge has found that "she probably would walk in some way at some stage, but her lack of understanding will always present the risk of accident. She will never be able to speak or acquire any verbal skills, though she may acquire a few simple and basic methods of communication. She is hyper-active. She is doubly incontinent and unlikely ever to achieve toilet control. It is unlikely that she will ever be able to feed herself completely and will never work or marry."
At present one of the most distressing features of her condition is that she indulges frequently, and for protracted periods of time, in uncontrolled fits of screaming. This causes soreness to the plaintiff's throat and is a source both of anxiety and exhaustion to those responsible for her care and welfare.
It is therefore perfectly clear and not in dispute that the plaintiff suffers from grievous permanent disabilities and will require care and attention for her daily needs and safety for the rest of her life.
Before turning to the issues which arise on this appeal it should be stated that the plaintiff remained in the care and control of her natural parents from the date of her birth until April, 1983. They were unable to sustain the strain or provide the necessary attention, and from April, 1982 until May, 1984 she was in the care of foster parents, Mr. and Mrs. Jolly. They also were unable to continue to look after her. From May, 1984 her care was entrusted to Mr. and Mrs. Woodward. The plaintiff remains in their custody and she has now been legally adopted by them. Mr. Woodward is aged in the middle fifties and himself to some extent disabled by the loss of an arm. Mrs. Woodward is aged 31. There is also resident in the household another adopted child, Peter, aged 13, who also suffers from cerebral palsy, but who is less disabled than the plaintiff. The present arrangements seem admirable. All the doctors and those who have knowledge of the family are agreed that the plaintiff receives all the loving care and assistance that could possibly be provided, and the judge said: "it is agreed on all sides that Mr. and Mrs. Woodward are doing a superb job in caring for the plaintiff and that they should continue to do so indefinitely." That they will do so indefinitely seems established by the fact of legal adoption.
Part of the claim put forward on behalf of the plaintiff relates to the expenses or notional expenses of the natural parents, of Mr. and Mrs. Jolly, and of Mr. and Mrs. Woodward. Most were agreed figures, but issues arise in respect of part of the special damage claimed in respect of the Woodwards. We will therefore leave further description of the position of the Woodwards until a later stage in this judgment.
The plaintiff's contention on the damage issue was put before the court in the form of an itemised Schedule, pp.1 to 7 of the court bundle. Many of the items were agreed and no issue arises upon them. Some items claimed were disallowed by the judge, who accordingly made no award upon them. Some were awarded, but in a reduced amount. At this stage it may be convenient to set out in tabulated form by reference to the schedule on analysis of the award made by the learned judge, omitting rejected items:
| 1. General damages for pain, suffering and loss of amenity | £75,000 | |
| Interest | £3,300 | £78,300 |
| 2. Care and Attendance | ||
| (A) Natural parents special damage | ||
| Nursing Care | £500 | |
| Travelling expenses | £498.12 | £998.12 |
| (B) Mr. & Mrs. Jolly special damage | ||
| Nursing care | £3,840 | |
| Other expenses | £590.73 | £4,430.73 |
| (C) Mr. & Mrs. Woodward special damage | ||
| (a) Mrs. Woodward for care and attention | £9,152 | |
| (b) Travel and other expenses | £2,033.60 | |
| (D) Interest | £2,113.33 | £13,298.93 |
| (E) Future loss claim: | ||
| (a) Mrs. Woodward) daytime services) | ||
| (b) Mrs. Woodward) night) time services) | £66,560 | |
| (d) Domestic attendance relief | £21,200 | |
| (f) Holiday residential help | £25,520 | |
| (g) Domestic help | £9,514.90 | £122,794.90 |
| 3. Additional Nursing Services after the plaintiff leaves school. | ||
| (a) Morning assistance) | ||
| (b) Evening assistance) | ||
| (c) Additional domestic) assistance) | £35,000 | £35,000 |
| 4. Accommodation. | ||
| (a) Cost of suitable) bungalow (less value) of property sold.)) | £28,800 | |
| (d) Cost of conversion) less value of) improvements) | ||
| (c) Removal costs, legal and survey fees. | £2,115 | |
| (f) Special Equipment | ||
| (1 - xvi) | £4,924.20 | |
| (xviii) Aural aids. | £1,500 | |
| £37,339.20 | £37,339.20 | |
| 5. Transport. | ||
| Nissan Prairie | £6,728 | |
| Depreciation | £7,136 | |
| £13,864 | ||
| 6. Additional daily care expenses. | ||
| (c) Clothing | £3,744 | £3,744 |
| 7. Court of Protection Administration Costs. | ||
| £25,000 | £25,000 | |
| TOTAL | £334,769.88 |
A sum was received by way of interim payment.
We have not set out in this analysis of the judge's award any indication of those items under various heads upon which he made no award, or, where an issue is raised, those in respect of which the award made was less than that for which the plaintiff contended. The issues which fall to be decided upon this appeal arise under the following heads:
(a) Future care and attendance for Mrs. Woodward at night, a matter which arises under the claim for post trial future losses, and under the special damage claimed in respect of those matters.
(b) Mr. Woodward's earnings. This item was put forward in respect of future loss, and was claimed as an item under the general claim for care and attendance.
(c) Accommodation and conversion costs.
(d) Special items, including additional rates and insurance premiums.
We now turn to consider the matters raised on this appeal in the order in which they were put forward in the notice of appeal and argued before this court:
Grounds 1 and (ii). Future Night Time Care and Mr. Woodward's Loss of Earnings.
As already stated, the judge awarded £66,560 as representing the value of the total services to be provided by Mrs. Woodward. This valuation was derived from the annual notional cost of day-time attendance at £4,160 per annum, capitalised by a multiplier of 16. This was item 2E(a) of the Schedule. The judge also awarded an agreed sum of £21,000 as domestic attendance relief, calculated on the basis of one day a week for 46.5 weeks at £28.50 per week, i.e., £1,325 per annum, capitalised by a multiplier of 16, and also awarded
(Schedule 2E(f)) an agreed sum of £25,520 for 5.5 weeks each year for residential help when the Woodwards were on holiday. He rejected a claim for Mrs. Woodward's night services of 46.5 weeks each year at £74.60, capitalised by...
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