A v B Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LLOYD JONES,MR JUSTICE LLOYD JONES |
| Judgment Date | 10 November 2006 |
| Neutral Citation | [2006] EWHC 1178 (QB),[2006] EWHC 2833 (QB) |
| Docket Number | Case No: TLQ/05/0641 |
| Court | Queen's Bench Division |
| Date | 10 November 2006 |
[2006] EWHC 1178 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lloyd Jones
Case No: TLQ/05/0641
Ms. E.A. Gumbel QC and Mr. H. Witcomb (instructed by Wolferstans) for the Claimant
Mr. Stephen Miller QC (instructed by Bevan Brittan) for the Defendant
Hearing dates: 26 th, 27 th 28 th April 2006 and 9 th May 2006
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.
This is a clinical negligence claim which arises out of the events which occurred during the birth of the Claimant A, at the Defendant's hospital in 1999.
During his mother's labour A suffered hypoxic ischaemic damage, and, as a result, developed a neo-natal encephalopathy. He suffered catastrophic injuries. His condition has been described, variously, by different experts as dystonic athetoid quadriplegic cerebral palsy and as dyskinetic tetraplegic cerebral palsy.
The Claimant sues by his father and litigation friend C. Due to the severity of the injuries which he has suffered A lacks capacity under the Mental Health Act 1983 and CPR Part 21. Accordingly he was certified as a patient of the Court of Protection in 200The paediatric neurologists Dr. Richard Miles and Dr. Lewis Rosenbloom, instructed by the Claimant and the Defendant respectively, have agreed that the Claimant will be a patient and will be unable to mange his affairs as an adult.
This action was commenced in 2004. Liability for the Claimant's injuries was admitted in the Defence. As a result, the hearing before me has been concerned solely with issues relating to quantum of damages. Furthermore, the parties have been able to reach agreement on all heads of claim other than the cost of future care.
The present condition of the Claimant.
It is common ground between the parties that A suffers from the following conditions.
a. Dystonia, variation in muscle tone and involuntary athetoid movements.
b. Major difficulties with bulbar function and epiglottic malacia which causes speech difficulties and renders him unable to swallow.
c. Double incontinence, although there is some possibility of continence training in the future.
d. Epilepsy, although the experts in paediatric neurology are agreed that this is easily controlled.
Despite the severity of his condition, A has significant retained cognitive function. However, the experts in paediatric neurology agree that he will always function as a child with severe learning impairment. At his current age of six and half years he understands a number of simple phrases and conversational speech. He has an understanding of cause and effect. He has learnt colours and can count up to five. He co-operates with commands. He has visual and aural functions although it is, as yet, unclear to what extent these may be impaired.
The parties also agree that A is incapable of carrying out independently any of the activities of daily living. He is wheelchair bound. He requires 24 hour care and is entirely reliant on others for all his needs. This will remain the position for the rest of his life.
When placed on the floor he is able to roll over and be very active, moving purposefully from one side of the room to the other. This is an activity which gives him considerable pleasure. Dr. Miles, the expert in paediatric neurology instructed by the Claimant, notes that A has made more progress in this regard than he would have anticipated at the date of his first examination in 2002. He considers the extent of a child's mobility to be a very significant factor in the determination of life expectation.
Up to the age of approximately two years A suffered from chest infections. However, since that age they have been much less frequent. Since the age of about two years, he has been in relatively good health, considering his disabilities. He has, however, suffered from middle ear infections.
His inability to swallow requires that he is fed by gastrostomy (tube feeding). Food is administered at set times during the day and at night while he is asleep. A further consequence of his inability to swallow is the necessity of the regular clearance of secretions from his airways.
A's parents are C and D. They met in their country of origin in South East Asia, and were married there in 1998. Following their marriage they came to this country where C had already obtained a Masters Degree at a university in this country. He then began a course of study leading to a PhD. D had been an opera singer and music teacher in her country of origin. They had no income and were supported financially by the parents of C. He is their only son. It was while C and D were living in this country that A was born in 1999. More recently, C has completed his PhD and has obtained a permanent lectureship at a university here. A second child, a daughter, was born to C and D in 2005.
In the early years A was cared for by his parents with very little outside support. However, following the admission of liability and the making of an interim payment, new arrangements were put in place with effect from about April 2005. C and D were able to engage Mrs. Amanda Dowdney as a case manager and with her assistance a care regime has been put in place and has operated since April 2005. A is now cared for by a team of seven carers comprising one registered nurse, four senior carers and two care assistants. At night time A has one waking carer for ten hours each night. The night shift is from 9.30pm to 7.30am.
In term time on week days A is cared for by his parents from the departure of the night carer at 7.30am until he leaves for school at 8.45am. In the mornings his parents perform the roles of washing, dressing, feeding, putting him in his buggy and toileting. This is described by C as the busiest period of the day. On weekdays during term time two carers attend, each for slightly over five hours. They attend mainly in the late afternoon and evening after A's return from school at approximately 3.30pm. There are generally two carers present although there are short periods of about half an hour to an hour on his return from school and before the arrival of the night carer when there are is only one carer present.
In daytime out of term time two carers attend for 14 hours each per day.
At weekends during the daytime A is cared for by two carers, each working a shift of nine and a half hours per day. On Saturdays he is often taken out in his buggy by his father. On Sundays he is taken to church by his parents. I was told that one or more of his carers attend the same church and so they are present to assist him, although they are not paid for this.
The current arrangements are clearly working well and to the satisfaction of C and D. This has had an important influence on the approach of Mrs. Daykin, the expert occupational therapist who gave evidence on behalf of the Claimant. She very frankly accepts that she has been impressed by the arrangements which have been put in place to care for A since April 2005 and that this fact, coupled with the improvement it has brought about in the lives of C and D, has led her to adopt it as the basis of her proposed scheme for the future care of A. In the course of her evidence she said that she saw the scheme working so well that it became the basis of her report, but that if she had considered that an item was totally unreasonable she would not have adopted it. However, in relation to this care element of the claim, the court is required to answer the question "What is required to meet the Claimant's reasonable needs?" ( Sowden v. Lodge [2005] 1 WLR 2156 per Longmore L.J. at para. 94.) The current arrangements are, no doubt, highly relevant in demonstrating the efficacy of provision which may be made. However, as the Defendant points out, the extensive provision put in place by A's parents cannot be allowed to pre-empt the issue of what is required to meet his reasonable needs. ( Campbell v. Mylchreest [1999] PIQR Q17 at Q 23–4.)
Areas of agreement.
The parties have reached agreement on the following issues. I have approved the agreement reached on these issues as in the best interests of A.
(1) The award of compensation to the Claimant for all items other than future care is agreed as £2,516,385.00.
(2) The Claimant's life expectation is to be assumed to be to the age of 42.5 years i.e. 36 years from the date of the trial.
(3) The full life multiplier for 36 years using Ogden Table 28 and a 2.5% discount rate is 23.85.
(4) The Claimant requires 24 hour care for the remainder of his life.
(5) Care costs, with the exception of nursing supervision, should be costed at an average hourly cost of £11.50 together with add-on costs.
(6) The cost of care from the age of 19 years should be assessed so as to apply for the remainder of the Claimant's life. The regime for life should be provided by directly employed commercial carers to provide care in the Claimant's own home.
During the hearing before me the parties also reached agreement on issues relating to night care.
(1) There had been an issue between the parties as to whether A will continue to require waking night care. In particular, Mrs. Daykin, the expert occupational therapist on behalf of the Claimant maintained that the need to suction oral secretions would require continuing night care throughout A's life. Indeed, in that phase of the scheme for future care proposed on behalf of the Claimant which relates to his life from the age of 19 years, provision was initially made for...
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