X v A Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jack |
| Judgment Date | 14 November 2008 |
| Neutral Citation | [2008] EWHC 2727 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ07X03831 |
| Date | 14 November 2008 |
[2008] EWHC 2727 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jack
Case No: HQ07X03831
Christopher Gibson QC and William Latimer-Sayer (instructed by Blake Lapthorn) for the Claimant
Margaret Bowron QC (instructed by Hill Dickinson) for the Defendant
Hearing dates: 29 October —4 November 2008
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 HONOURABLE MR. JUSTICE JACK
This judgment rules on the outstanding issues between the parties as to damages.
The claimant is now nearly 17. He is severely disabled as a result of his treatment following his pre-term birth at a hospital for whose conduct the defendant Health Authority is liable. Proceedings were issued in June 2006 and judgment was entered for damages to be assessed on 10 November 2006. There has been agreement on all issues relating to damages save some of those relating to the claimant's care after his 19 th birthday. At the start of the trial I gave my approval to the agreed items as they then stood. This judgment covers the issues which remain outstanding after the hearing – for some disappeared during the course of it. It is agreed that future care and items associated with it should be recovered by means of periodic payments rather than by a lump sum award.
A week prior to the trial I had heard an application that it should be heard in private. The ground of the application was that the claimant did not know of the proceedings which had been brought in his name by his father as his litigation friend, and that it was necessary for them to be in private to avoid the risk that others might learn about them through local publicity and that he would learn in that way rather then when his parents thought it right to tell him. The reason why he did not know was that his parents considered that he had enough problems on his plate in his mid teenage years at a mainstream comprehensive school and with his disabilities without the additional pressure that knowledge of the litigation and its probable fruits would bring. I decided that it was unnecessary to hold the proceedings in private and that the wider interest in justice being done in public should prevail. I continued an order that the parties should not be named in the title of the action. I made an order under section 39 of the Children & Young Persons Act 1933 that nothing should be published to identify the claimant including by identifying the defendant. The order provides that the defendant may be identified after 6 months, thus enabling the press to report the judgment against the health authority after allowing a period for the parents to inform the claimant (who will then be about 6 months short of his 18 th birthday).
The claimant suffers from cerebral palsy. He has a very little movement in his left hand and has better movement in his right hand. He can, for example, hold a biscuit in his right hand and can operate an appropriate keyboard with it. He has a limited ability to roll when placed on the floor. He has no movement in his legs. He is dependent on others for everything. His intellectual ability is reduced, but he has been able to attend mainstream education throughout his life and has now begun three years in the sixth form of his local comprehensive school. He has taken GCSEs, though with modest success. That he has been able to do this is a considerable achievement by him, and by the school and by his parents.
He has been cared for throughout his life to date by his parents who have spared nothing to give him the best life which is now possible for him. His father is a management accountant who had had a successful career in business before he gave it up to look after the claimant. In 1995 following earlier visits his mother took the claimant to Budapest for a year to the Peto Institute which has a unique reputation in advancing the progress of children such as the claimant. It is his parents who have largely carried out the exercising and physical therapy which is responsible for his physical condition being as good as it is.
His parents intend that over the next two years a care regime will be introduced whereby the care of the claimant, day and night, will be transferred from them to a team of paid carers. Both parents intend to resume work. The claimant has a younger brother who is currently starting his GCSE years. It is intended that he will take his A levels and go on to university. It is the strong hope of his parents that the claimant to will be able to attend university. However the claim was not put forward on that basis: the claim accepts that the probability is that this will not be possible.
As I have stated, it is agreed that future care will be catered for by periodic payments. The claimant's life expectancy has been put at 60 and 57 by experts on either side. So a small difference in the payments to be made per week for future care has a substantial effect.
Mr Christopher Gibson Q.C. emphasised on behalf of the claimant that the function of an award of damages is to put the injured party in so far as can be done by an award of money in the same position as if he had not been injured. He called that 'the 100% principle', the purpose being, I think, to emphasise that the court should go the whole of the way to that end, and no less. He cited authority to establish that I should approach the outstanding issues by answering two questions:
(1) Was the choice of the manner in which the claimant was to be cared for reasonable?
(2) Was the cost of the care so chosen reasonable?
I refer to Sowden v Lodge [2004} EWCA Civ 1370 citing Rialis v Mitchell (1984) Times, 17 July, and Massey v Tameside & Glossop Acute Services NHS Trust [2007] EWHC 13 (QB) at paragraph 59. It is of course necessary for the court to assess the needs of the injured party to provide a basis on which to approach the questions. Miss Margaret Bowron Q.C. appearing for the defendant did not criticise the proposed approach. I comment that when a particular head of claim is examined, the issues tend to merge.
The claimant's parents have sought no assistance with his care from the present local authority, and it is their intention not to do so from any local authority in the future. The defendant called no evidence to support any deduction from the damages to be awarded by reason of provision being made by a local authority. It is agreed that in these circumstances the question of any deduction being made does not arise. It remains, however, a possibility that, at some future time and in circumstances which cannot be foreseen, the claimant may himself obtain assistance from a local authority, having the effect of an overlap with the periodic payment and so a double recovery. It was agreed that there was nothing that I could do to prevent that. The problem was considered by Flaux J in Burton v Kingsbury [2007] EWHC 2091 (QB), paragraphs 93 to 110, citing Freeman v Lockett [2006 EWHC 1002 (QB) and Crofton v NHS Litigation Authority [2007] 1 WLR 923 (Court of Appeal). Flaux J considered whether, on the evidence before him, it was there appropriate to make a deduction from the award he would otherwise have made to reflect the payments that the local authority would make on the basis of its existing policy. He held that this would not be appropriate because the policy might change. He considered what is called 'the reverse indemnity' provision which is frequently included in settlement agreements to cover this situation, but held he had no power to order it, and in any event the insurers were unhappy with it. He accepted an alternative proposal that he should order the defendant to pay by way of periodic payment whatever proportion of the annual sum he had awarded, which was not met by the local authority. It was submitted to me that this order did not comply with CPR 41.8 because the award did not specify the date or amount of the decrease in the award which might occur, as required by paragraph (3) —which is enlarged on in PDB 41.2.2. Neither side suggested I should adopt this solution to the problem. The claimant's father offered an undertaking that he would not seek any local authority funding, and it was tentatively suggested by Miss Bowron that this could be given on behalf of the claimant and joined with a provision enabling the claimant to apply to be released from it. But neither counsel were in favour of it. I think they were right. I have no power to order such an undertaking, and it is very arguably not in the claimant's interest that it be given. So the problem remains. It appears to require a legislative solution of one kind or another.
With this introduction I can come to the points which require my decision.
A. Where?
It is the claimant's case that when his brother has taken his A levels in the summer of 2012, the family will move south to Surrey and set up in the vicinity of Guildford. The importance to the assessment is that the rates for carers in this area are high. The hope is that the claimant will be able to make a more interesting life in the area than in the somewhat remote and very rural area in which he currently lives. The hope is also that the claimant's parents will both have a better chance of finding work there than where they are now. The claimant himself wishes to move, and, though he can have little idea of what life in Guildford might offer, he is attracted to it. I heard the evidence of both parents as to the move. There can be little doubt that the family will move from where they are, even though it will meaning leaving two sets of grandparents who...
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