A (suing by her litigation friend Mrs. H) v Powys Local Health Board
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LLOYD JONES |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] EWHC 2996 (QB) |
| Court | Queen's Bench Division |
| Date | 19 December 2007 |
| Docket Number | Case No: 4CF20091 |
[2007] EWHC 2996 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Lloyd Jones
Case No: 4CF20091
Simon Taylor QC and William Latimer-Sayer (instructed by Messrs. Huttons) for the Claimant
Adrian Whitfield QC and Ranald Davidson (instructed by Welsh Health Legal Services) for the Defendant
Hearing dates: 3 rd, 4 th, 5 th, 8 th, 9 th, 10 th, 15 th and 16 th October 2007
Judgment Approved by the court
for handing down
The Claimant A, who sues by her mother and litigation friend Mrs. H, was born at the University Hospital of Wales, Cardiff on 3 rd July 1991. As a result of the treatment of her mother during A's birth, A has suffered severe injury. Liability in negligence has been admitted. Judgment has been entered for damages to be assessed and quantum remains the only issue in dispute between the parties.
GENERAL DAMAGES: PAIN, SUFFERING AND LOSS OF AMENITY.
As a result of the injuries suffered at birth A suffers from dyskinetic cerebral palsy which significantly compromises her physical movements. Her disability is due to damage to the thalami and basal ganglia. The cause of the damage was profound hypoxic ischemia. Her disabilities are permanent and her dyskinesia is severe. A is currently 16 years of age.
A suffers from severe involuntary movements which hamper her ability to carry out all activities of daily living. She is unable to walk unaided but is able to walk using a Kaye walker. She shows multiple dyskinetic movements during walking. She is very unsteady when standing without her Kaye walker. She is able to transfer herself from one seat to another. Her hand skills are significantly compromised due to severe dyskinesia in her upper limbs. She has poor voluntary placement of her hands. Her involuntary movements become more pronounced when she tries to execute fine motor skills. Her involuntary movements are unpredictable and can be forceful. Her muscle tone is very variable, often becoming markedly hypertonic, but relatively loose on other occasions.
A suffers from a severe level of dysarthia which significantly affects her ability to communicate effectively, particularly with people who do not know her. This will be permanent and the evidence of the jointly instructed speech therapist, Ms. Lesley Carroll-Few, is that there is no treatment which will help her. She is prone to dribbling. However, she is capable of holding a conversation. She gave evidence before me. Her speech is intelligible when one becomes used to it but we were assisted in court by her mother who repeated A's answers.
A does not suffer any pain as a direct result of her condition. However, involuntary biting of her gum has given rise to severe problems with mouth ulcers which are extremely painful and for which the only effective pain killer is morphine.
A's intelligence and intellectual development have not been affected by her injuries. She is very intelligent and has shown a commendable determination in her studies. She has recently achieved very creditable grades in ten Junior Certificate Examinations in Ireland, where she lives with her parents and brother. (These are the equivalent of GCSE examinations in England and Wales.) Despite her disabilities she has learned to ride and is able to trot, canter and jump low jumps. She is due to be assessed shortly for the Irish Paralympic Team.
A requires a high level of support. It is common ground between the parties that she will be dependant on able-bodied carers for all activities of daily living for the rest of her life and will be unable to live independently without assistance. She currently requires and will always require 24-hour care. She is unlikely to be able to feed herself. From the age of 18 she will require care 24 hours a day on a permanent basis. There is an issue as to whether she will require two carers throughout the day.
On behalf of the Claimant Mr. Simon Taylor QC draws my attention to the JSB Guidelines (8 th Edition) published in June 2006. These indicate that the highest level of award for quadriplegia in category 1(a) ranges between £188,250 and £235,000. (When updated by reference to RPI for August 2007 of 207.3 the range is £196,596 to £245,418.) The JSB Guidelines indicate in 2(A)(a) that the highest level of award for severe brain damage should be between £165,500 and £235,000. (When updated by reference to RPI for August 2007 of 207.3 this gives a range of £172,837 to £245,418). Mr. Taylor concedes that the Claimant is not at very top level because she does not have the communication problems experienced by some suffering from cerebral palsy, nor does she currently suffer from incontinence. Nevertheless, he submits that her injuries place A towards the top of the relevant bracket and that an award of £220,000 to £230,000 is appropriate.
On behalf of the Defendant, Mr. Adrian Whitfield QC points to the fact that A is active physically and has maintained her intellectual ability. She is able to communicate by speech, albeit with difficulty, does not suffer from epilepsy, is currently continent and sleeps well. He also draws attention to the report of the Defendant's medical expert, Dr. M. F. Smith, who describes A's cerebral palsy as “mild to moderate”. On this basis he submits that although her injuries are serious the award of general damages should not exceed £200,000.
On behalf of the Claimant Mr. Taylor has drawn my attention to a number of comparable awards. With one exception, these are all settlements which have been approved by the court as opposed to adjudications. As a result, they have to be treated with some caution. The closest comparables to which I have been referred are both settlements. In Burnham v Northamptonshire Health Authority (2004) the Claimant suffered from predominantly dyskinetic cerebral palsy and a major motor dysfunction. He had a significant range of physical disabilities which included being unable to walk or stand unaided. His upper limb function was significantly impaired. His expressive communication was severely limited and he found both feeding and eating difficult. He had been unable to obtain employment. The agreed settlement for pain, suffering and loss of amenity, adjusted to current values, was £226,433. In X v North Staffordshire Health Authority (2003) the Claimant suffered from severe physical disabilities which included spasticity of her limbs, although there was a relative preservation of her intelligence. She was wholly reliant on others for all aspects of her daily living and required 24-hour care. Her communication was severely impaired and she suffered from feeding and sleeping difficulties. The agreed settlement for pain, suffering and loss of amenity adjusted to current values was £218,539.
A's injuries are undoubtedly serious. They are of a degree of severity that will require a high level of support throughout her life. They are so serious as to deny her any prospect of remunerated activity. Nevertheless, I accept the submission of Mr. Whitfield that the injuries suffered by A, if considered in isolation, do not place her at the very top of the range indicated by the JSB Guidelines. However, I consider that it is necessary to give due weight to two further considerations. First, it is necessary to take account of the fact that A has a long life expectancy. She is expected to live to the age of about 70. This means she will experience a greater degree of suffering and loss of amenity than many others who suffer from cerebral palsy but who have shorter life expectancies.
Secondly, it is also relevant that A's retained intellect means that she has an insight into her condition. It was clear to me from her evidence and from that of her mother that A is acutely aware of how she is different from others. In recent weeks she has suffered distress at the realisation that her disabilities prevent her from taking part in the transitional year usually taken by pupils in Irish schools at this stage and has decided to proceed immediately to her fifth year studies. This has been a very distressing experience. She is very sensitive to her appearance and is particularly anxious not to be seen with equipment or anything that reveals her disability. I accept that she will experience difficulty in making relationships, particularly with the opposite sex. It is an unhappy fact that there is already evidence that she is vulnerable to bullying and social exclusion; the negative attitudes of some acquaintances have caused her acute unhappiness. It is likely that she will suffer from periods of depression as she attempts to come to terms with her condition. In recognition of this an award of £10,000 has been agreed for future counselling.
These further considerations serve, to my mind, to distinguish the awards in favour of Luke Warren and Robert Annable in Heil v Rankin [2000] 2 WLR 1173. In each case the award, adjusted to current values, was £215,425. Those claimants suffered from learning difficulties and therefore had less insight into their condition. They also had shorter life expectancies than does A.
Having regard to all these considerations I assess pain, suffering and loss of amenity in the sum of £225,000.
PAST LOSSES AND EXPENSES
All past losses and interest on these heads of claim, excluding costs of accommodation, have now been agreed between the parties as follows:
Interest on past accommodation has been dealt with separately.
| Past care | £165,000 |
| Past treatment and therapies | £ 7,500 |
| Past travel and transport | £ 32,000 |
| Past aids and equipment | £ 11,190 |
| Past miscellaneous expenses | £ 10,000 |
| Total | £225,690 |
| Interest at 40% | ... |
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